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1 

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■T"^^^^^ 


LEADING 


CASES    SIMPLIFIED 


A  COLLECTION   OF   THE 


LEADING  CASES  OF  THE  COMMON  LAW. 


HY 


JOHN    D.    LAW  SON, 

Author  of  "  irordii  mill  Phraaes  JiidiCMUij  Construed,"  "  The 

Lair  of  Cmr/esaiid  Customs,""  The  Contracts 

of  Common  Carriers,"  etc.,  etc. 


ST.  LOnS: 
P.    II.    THOMAS    &    COMPANY, 

l.s.s-.'.  • 


mmmim 


f 


KnteitMl  arcovdiiiK  to  Act  of  Coiifrress,  in  tlio  year  ISSi,  by 

JOHN"  1).  T.AWSOX, 
Jnthconiccof  the  Librarian  i.f  t'ongruss,  at  Wasliington, 


rronK  of  Xi  von-, Tones  Printing  Co. 


PKEFACE. 


I 


All  cMuleiivor  bus  boon  made  in  the  following  i)agt's  to 
present  the  Loading  Cases  of  the  Common  Law — the  land- 
marks of  the  law  of  to-day  in  the  States  of  the  Union  —  in  a 
clear,  concise  and  semi-humorous  style.  While  this  book  is 
more  particularly  intended  for  the  law  student,  it  is  hoped 
that  (if  he  can  lie  induced  to  read  it)  the  general  reader  will 
And  it  interesting,  and  it  is  promised  that  (if  he  cannot  be 
prevented  from  reading  it)  the  busy  practitioner  will  find  it 
both  entertaining  and  prolitable. 

In  this  little  book  I  have  aimed  at  these  results :  1.  To  crive 
the  student  a  collection  of  the  acknowledged  leading  cas^s  of 
the  commcm  law.  2.  To  present  these  in  a  style  which  shall 
arrest  his  atttmtion,  render  it  possible  for  him  to  ac(iuire 
their  piinciples  readily,  and  fix  those  principles  in  his  mind 
unincumbered  l»y  unimportant  and  sometimes  unintelligible 
facts.  To  this  end  only  the  really  leading  cases  have  been 
selected,  and  these,  instead  of  being  some  fifty  or  sixty,  num- 
ber in  all  over  two  hundred,  and  embrace  nearly  every  branch 
of  the  common  law  of  the  land.  To  this  end,  also,  correct- 
ness of  statement  has  been  adhered  to,  and  humor  has  never 
been  indulged  in  at  the  expense  of  truth.  Therefore,  this 
work  differs  essentially  from  a  ^vork  like  the  "  Comic  Black- 
stone,"  in  this,  that  while  in  that  the  principles  of  the  law  are 
parodied,  here  the  facts,  the  result,  the  principles  settled 

(hi) 


J 


I 


IV 


rUEFACE. 


and  the  reasons  given,  are  stated  as  tlR\v  are  found  in  Coke 
and  Story  and  Kent,  and  to  tlic  same  end  I  have  arranged 
the  cases  in  logical  oi'der,  so  that  tlie  hnv  may  he  studied 
systematically  and  without  confusing  the  many  different 
points  which  the}'  decide.  In  adopting  the  semi-humorous 
vein,  I  have  tried  to  make  the  study  of  the  law  less  dry  to 
the  student  than,  as  a  rule,  it  generally  is. 

In  bringing  the  following  i)ages  more  particularly  to  the 
notice  of  the  "student,"  I  am  keeping  in  mind  the  fact 
that  one  does  not  cease  to  be  a  student  by  Itcing  admitted  to 
the  bar. 

It  is  an  old  saying  that  tliere  is  no  rule  without  an  excep- 
tion, and  1  believe  that  this  maxim  is  nowhere  lietter 
illustrated  than  it  is  by  the  rules  of  the  common  law.  JMan}' 
of  these  exceptions  the  student  will  find  stated  in  the  cases 
themselves,  others  of  them  again  in  the  occasional  notes  to 
the  cases. 

In  conclusion,  I  desire  to  express  my  obligations  to  ]Mr. 
Shirley,  the  author  of  the  English  work,  Leading  Cases 
Made  Easy,  lor  the  most  of  Smith's  Leading  Cases,  wliich  I 
have  either  rewritten  or  adapted,  and  also  for  several  later 
ones.  J.  I).  L. 

St.  Louis,  Mo.,  June,  1882. 


co:n^texts. 


FOUM     OF 


.PART  I.  —  FoR.MATiox  OF  Contract. 

Two  llKQUISITES  TO  COXTKACT,   VIA.,  PROPOSAL  AND  ASSEXT 

White  V.  Coi'lic's 

Bartholomew  v.  Jackson    .... 
PuoposAi,  Cannot  ni;  Rkth acted  Aktku  Acceptance  — 

Boston  and  Maine  A*.  Co.  v.  Bartlett 
BiDDiNO  AT  Auctions  — 

raijne  v.  Gate 

PuoposKR    May    Puescuiue    Time,    Place    and 
Acceptance  — 

Eliason  v.  Ilcnshaio  .         .         ,         . 

Maclay  v.  Harvey 

But  not  oe  Refusal  — 

Felthouse  v.  Bindley  .... 

Offeu  must  he  Accepted  within  Reasonahle  Time 

Lorimj  v.  City  oj  Boston  .        . 

Contkacts  uv  Post  — 

Adams  v.  Lindscll 

Tayloe  v.  Merchants  Fire  Ins.  Co.    . 

Household  Fire  las.  Co.  v.  Grant     . 
Uncektain  Agreement  does  not  make  Contract 

iSherman  v.  Kitsmiller       .... 

Zaleski  v.  Clark 

Acceptance  must  ke  Identual  with  Offer  — 
Jordan  v.  Norton 

Acceptance  of  Altered  Proposai 

Borland  v.  Guffey 

Proposal  to  Unascertained  Person  — 

Williams  v.  Carwardine   .... 


rA(jE. 


1 
2 

3 
5 

r> 

7 
8 
1) 

11 

12 
U 

l(j 
18 

19 

20 

22 


(V) 


VI 


CO  NT  K  NTS. 


MiSTAKK  AS  TO  PKliSON  foMUACTINi; - 

Boston  Ice  Co.  v.  Potter  . 

MisTAKK  AS  TO  SraiKCT  Mattkk  — 

K'lle  V.  KavanaiKjh  . 

RliPUIJSKNTATIOXS  AM)  WaKUANTIKS  — 

liehn  V.  Burness 


I'A(.K. 

.     2:5 


.     20 


PART    II.  t'oN'SIDKUATION. 


A  COXSIDEUATIOX  NeCESSAKV    lO  Sll'I'OlM'  A  ("oNTKACT  — 

liann  v.  IhKjhes 28 

AOKQIACY  ()!■'  CoNSIDl'.ltATIOX   I>rM  ATKUIAL  — 

Ii<iinbri(h/e  v.  Finustoiie    .......     20 

But  Considkhation  mist  lu;  Kkal  — 

White  V.  Bluett 30 

FOUnEAHANCK  TO  SUK  A  Sfl'I' ICIKXT  CoXSIDKKATION  — 

Ilockenhurij  v.  Meyers 32 

PKOVIPKI)  T!IK1!K  IS  A  LKOAL  CaISK  ok  A«   ITOX  — 

Palfreij  v.  Bortlaiul,  etc.,  JL  Co 32 

Promise  to  i>o  what  Pakty  is  Boind  to  do,  Insiifk  ii;n  r  — 

Beijunhls  \.  Xiii/eiit  ........     iH 

Climber  v.   Wane 35 

Moral  Ohi.igatiox  Insli'iicikxt  — 

Cook  V.  Brmlleij        .         .        .        .        .         .        .         .     3(! 

Beaumont  v.  Reeve .37 

Past  Coxsideratiox  — 

Balkleij  v.  L.jidon 38 

Lamplevjh  v.  Brathwait 39 


PAKT  III.  —  Papties. 


Contracts  of  Infants  Voidaiji.i:  axd  Void- 
Fetrow  v.  Wiseman  .... 

Except  for  Necessaries  — 

Peters  v.  Flemin<j      .         0         .         . 
Hunt  V.  Pcakc  .         .        .        .        . 


41 

42 
43 


CONTENTS. 


vil 


I'A(.K. 


'28 

2!» 

30 

32 

32 

;'4 
35 

3() 
37 

38 
39 


I'AGK. 

.  45 

.  4(5 

.  47 

.  47 

.  50 

.  51 


41 

42 
43 


IIUSUANI)  AND  WiFK  — 

Miinhy  V.  ScDtt 

Moiitnijn  V.  Jtcnrdirt  ...... 

Seaton  v.  Benedict 

Debvnhnm  v.  Mellon 

COXTUACTS  OK  Li'XATICS  — 

Milchell  V,  KuKjnuin  .         ...'.. 

Baxler  \ .  Portsmouth        ...... 

Krom  V.  Sdioonmaker      .......     52 

CoXTUACTS  OK  CoKPOItATIOXS  — 

Bank  of  Colamhui  v.  Patterson 53 


PART  IV.  — Tin:  Stattte  of  Fuaids. 
Pkomisk  to  Axswku  kou  "  Dkbt,  Dhkault,  oil  Miscauriage  " 

OK  AXOTIIKI!  — 

Birkmijr  v.  Darnell   . .57 

Pkomisk,  "  ix  CIoxsidkuatiox  ok  "  Makhiaok  — 

Short  V.  Stotls 59 

"In'tkkhst  i\  oil  CoxcK.iixixo  Laxds"  — 

Crosbij  V.   IVads worth       .......     59 

COXTUACTS  "  XOT  To  UK  PERKOIOIKM  WITIIIX  A  YkaU  "  — 

Peter  v.  Coinpton      ........     00 

CONSIDKl!ATi;)X  Mlsr  UK  Exl'IiKSSKl)  — 

Wfiin  V.  Warlters ('>2 

Pkomisk  to  Axswkk  kou  Dkht,  ktc,  ok  "Axotiikk"  — 

Eastwood  V.  Ken^/oii .03 

"  Goods,  Wauks,  axo  Mkuciiaxdisk  "  — 

Tisdale  v.  Harris      .        .  .....    G6 

Goods  xot  ix  Existkxck  — 

Lee  V.  Griffin 36 

Value  ok  Goods  — 

Baldeij  v.  Parker       .        .         .        .         .         .        .         .07 

Acceptaxck  axd  Rkceh'T  — 

Elmore  v.  Stone        ........     08 

Shindler  v.  Ihmston 70 

CoXTKACT  CoXTAIXED  IX  SeVEUAL  DOCI'MEXTS  — 

Boydell  v.  Drummond       .......     71 


"3f 


viii 


CONTENTS. 


PART  V.  —  WuiTTKN  CoNTUACTs  AND  Ohal  EvroENCF;. 

PAGE. 


Oral  Evidkncr  not  Admissiiilk  — 

Goss  V.  Nu(je)it  .... 

Pijm  V.  Cainphcll       .... 

L.VTKNT  AMIUGt  ITY  MAY  HK  K.tl'I.AINKI)  — 

Sargent  v.  Adams     .... 
But  not  "  Patknt  Amukji  itv"  — 

Aspden's  Estate         .... 

SUPPLEMKXTVnY  CONTRACT  MAY  IJK  SHOWN  — 

Malpas  V.  Luiulo)!,  etc.,  li.  Co. 

Usages  of  Tijadk  may  bk  Shown  — 

Cooper  V.  Knne         .... 
Soutier  V.  Kellermua 

Usage  must  not  Coxthapict  Contkact  — 
BlackeM  v.  Royal  Exchange  Ass.  C;. 


74 
7G 

77 

78 


80 
«1 

85. 


PART  VI.  —  Ili,i:(jal  Contuacts. 


Contracts  to  Prevent  Co.mpetition  — 

Gulick  V.  Ward  .... 
Agreements  to  Influence  Officials  — 

Tool  Co.  V.  Norris  .... 
Contracts  Impudino  the  Administration  of 

CoUins  V.  Illanteni   .... 

Scott  V.  Arenj 

Contracts  Violatino  Law  — 

Cowan  V.  Milbourn  .... 
Contracts  Violating  Statutes  — 

Pattee  v.  Greeley  .... 
Immoral  Contracts  — 

Pearce  v.  Brooks  .  .  .  . 
Wagers  — 

Good  V.  Elliott  .... 

Contracts  in  Restraint  ov  Trade  — 

Alger  V.  Thacher       .... 
Mitchel  X.  Beynolds  .... 


Justice  — 


87 


88 


.  8!) 

.  91 

.  02 

.  9.'? 

.  95 

.  9R 

.  98 

.  101 


CONTENTS. 


Ix 


tDENOF;. 

I'AGE. 

.     74 

.     7G 

.     77 
.     78 


.     80 
.     «1 

.     85 


87 

88 

8!) 
91 

02 

93 

95 

9fi 

98 
101 


CONTUACTS  IX  RksTUAINT  OK  MaIIUIAGK  — 

Loice  V.  Pecrx . 

MAIlHIACiK  BliOKAOI-;  CoXTUACTH  — 

Cnucfui'd  V.  littssell 

COUKT  Wri-I-  NOT  AID  ElTIIKK  PaUTY  — 

Ilohnan  v.  Jnhnsun 

EXCKPT  WIIKKK   IlLKOAL  P[TUrOSI':  IS  NOT  (;().M1'I.I:TEI)  — 

Spring  Co.  v.  Knowlton 


PAOE. 

..  102 
.  103 
.  10« 
.  108 


TART  VII.  —  Pfufoumance  uf  Contkacts. 

DiSCIIAUdK  HY  xVCT  OK  PKOMISKE  — 

Feck  V.  United  States ,        ,  110 

DisciiAiuiK  BY  Act  ok  La\v  — 

Baibj  y.  Dc  Crexpigny HI 

Impossiiumty  ok  Pkkkokmanck. — 

Ta'jlurw  Caldwell 113 

Impossiiumty'  by  Act  ok  God  — 

Ii()bi)is(}n  V.  Darinon         .        .         .         .         .         .        .114 

Deweijv.  Union  School  District  .  11(» 

RkNUXCIATION  BkFOKE  PKHFOltMANCK  (ilVKS  RuillT  TO  Sui:  — 

Ilochstcr  V .  De  La  Tour 117 

Frosty.  Kniijht 118 

CoNSTiaCTION  OK  CoNTUACTM  — 

Itoe  V.  Tranmar .119 

Brkacii  of  Pi«omi8K  ok  Makkiagk  — 

Wrif/htnutn  v.  Coatcs 120 

Atrhinsan  v.  Baker   .         .         .         .         .         .         .         .121 

Willard  v.  Stone 122 

An  Entirk  Contract  cannot,  hk  Apportionkd  — 

Cutter  y.  Foicell 123 

Mf,asi:rk,  of  Pamagks  ox  Brkach  of  Contract  — 

Iladley  v.  Baxendalc 125 

Pknaltiks  axi>  Liquidated  Damages  — 

Kcmble  v.  Farren ,  12() 

Fraudulent  Ooxvevances  — 

Ti{iyne''s  Case 128 


X  CONTE>'    S. 

I'AGE. 

Recovery  of  Moxey  Paid  uxdek  Mistaki:  — 

Marriott  v.  Hampton        .......  130 

PART  VIII. —Sales. 

When  Sale  Complete,  Pkoperty  Passes  at  Oxce  — 

Tarlincj  v.  Baxter 132 

Unless  S()metuix(i  Remaixs  to  he  doxe  — 

Gihhs  V.  Benjamin  ........     133 

Warranties  — 

Chandelor  v.  Lopus  ........  134 

iMPLtED  WaURAXTY  OE  QUALITY  OF  GoODS  — 

Jones  V.  Jnst    .........  136 

Warranty  must  re  Durixg  Course  ok  Sale  — 

Ilor/ins  v.  Phjmpton 138 

PART  IX.  —  Principal  and  A(;knt. 

Special  Aoext  .mist  Pursue  Authority  — 

Batty  V.  Carswell 139 

Death  of  Prixcipal  Revokes  .Vuthohitv  — 

Harper  \ .  Little ,.        .         .  110 

COXTRACTS  WITH  AOEXTS  OF  UmjISCLOSKD  PltlXcn'ALS  — 

ratersonx.  Gandaxeqni    .         .        .         .        .         .         .111 

Thomson  V.  Davenport 143 

Stone  V.  Wood 145 

Set-Ofe  Against  Piuxcipal  — 

Geortje  v.  Cbujett 140 

Agent  Exceedlng  Authouitv  Liarle  in  Coxirac  r  — 

ColJen  V.  Wright       .        • 148 

Partnership  I.iaiulitv  — 

Wauyh  v.  Carver .150 

Cox  V.  Hickman 151 

PART  X. — Negotiable  1'aper. 

The  Requisites  of  a  Promissory  Note  — 

Ke.lley  v.  Hemmingicaij 153 


•| 


PAGE. 
.    130 


.  132 

,  133 

.  13-1 

.  13(1 

.  138 


CONTENTS.  XI 

PAGE. 

Title  to  Bank  Notes  — 

MiUrr  V.  lidce ,154 

Who  is  a  "  IIoLoi.it  fou  Vau-k  "  — 

Swift  V.  Tijsoh 155 

NOTICK  OK  DiSIIOXOI!,  WIIKN  XlOCKSSAHY — 

Bkkordike  v.  Bulhunn 157 

UxAUTiioi!i7.i:i>  Altkuations  Vitiate  the  Ixstrumext — 

Master  v.  Miller 158 

Negligexce  IX  DiiAwixo  Check  — 

Young  v.  Grote lOO 

Stoppage  i\  Tuaxsitu  — 

Lickbarrow  v.  Mason IGl 

Statute  of  Limitatioxs  — 

Whitcomb  v.  Whiting 103 


PART  XI.  —  Laxdlouo  axd  Texaxt. 


13!) 

140 

111 
J 13 
145 

i4t; 

148 

150 

151 


PaYIXO  ReXT  FOU  1)ESTI!0YK1)  I'kemises  — 

JIallctt  V.  Wijlie 

No  Wahkaxty  as  to  Coxditiox  ok  Phemises  — 
Clcvcs  V.  IVilloitijhb'j         .... 

Except  it  is  a  Fchxished  House  — 

Smith  V.  Marrablc 

EEEECT  0\  TeXAXT  OI'   M()I!T(!Al!E  BY  LAXin.OKD- 

Kecch  V.  I  fall 

Moss  V.  Gallinwrc     ..... 

USA(iES  A.VI)  CrsTOMS  — 

Wigglesinorth  v.  Dallison  .         ... 

Leases  eoi!  moije  thax  Three  Yeahs  — 

li'igg.-  V.  Hell 

Claytun  v  Dlakey 

ACUICULTUIIAL  FiXTI  KES  — 

Ehi'c.s  V.  Mawe, 

COVEXAXTS  THAT  "  RlX  WITH  THE  LaX1>  " — 

Spenccr^s  Case 

Waiveh  oe  Coxditiox  ix  Lease  — 

Dumpor''s  Case 


.  1G5 

.  IGG 

.  1G7 

.  169 
.  170 

.   171 

.  172 
.  173 

.   174 

.  178 

.   180 


153 


«.WM.Wi 


Xll 


CONTENTS. 


Goona  Pkivilkgf.d  fkom  Distkkss  v*ni  Eknt 
Simpson  v.  J/artopp 


TAOK. 

.   182 


PART  XII.  —  Insuuance. 

CONCKALMKXT  OK  ^MaTKHIAL  FaCTS  — 

Carter  v.  Borhm 18(! 

FlKK  IXSI'RAXCK  —  Cl'STOMAUY  UsK  o:'  PlIOIIiniTKl)  AkTK  I.IIS  — 

Harper  V.  City  Ins.  Co 1.S7 

Who  may  Ixsure  tiii:  Liki:  ok  Axotiikij  — 

Conneclicut,  etc.,  Ins.  Co.  v.  Sehaefer      ....  189 


PART  X  III.  —  Bailments. 

TlIK  DiKKEltKXT  KlXDS  OK  BaILMKXTS  — 

CoyijH  V.  Bernard 

Liabilities  ok  Ixx-kekpeus — 

Cayle's  Case 

Berkshire  Woollen  Co,  v.  Proctor     . 
RKsroxsiniLiTY  ok  Cauuikk  ok  PASSKXciKus  Koi{  1)i:kk 
Vehicle  — 

Ingalls  v.  I}(7^s 

Railroai>  Time-tarles  and  Coxthacts  — 

Denton  v.  Great  Northern  It.  Co.      . 

POWEK  OK  CAniUEIi  TO  LllMIT  LlAlHLITV  — 

Ilollistcr  V.  2k'owlen 

Liability  kok  Ixjcuy  to  Free  Passkxgeii  — 

Fhiladelphia,  etc.,  It,  Co.  v.  Derhy  . 

THAVELLIN(t  OX  "  FUEE  PaSS  "  WITH  CoXDITIONS  — 

Itailroad  Co,  v.  Lockicood        .... 

Who  Caimueu  may  Refi'sk  to  Oahhv  — 

Tlmrstonw  Union  Pacijic  It,  Co.     , 
What  is  ''Bacgaoe  "  kok  wiik^ii  CAintiEu  is  Rksi-onsih 

Neic  York,  etc..  It.  Co.  v   Fraloff    . 


TIVE 


-i:  — 


11)4 

1  ;•!» 

200 

202 
204 
205 
207 
L09 
210 
212 


I'ART  XIV.  —  Ni;(;Li(iENCE. 

Injury  Resi'ltixc;  kuom  Unintentional  Accidext 
Broicn  v.  Kendall 


>15 


'« 


I'AriE. 

.  182 


.  i8(; 

rici.Ks  — 

.  187 

.  189 


194 

199 
200 


■:rK(  Tivi: 


■iiiu.i; 


.  202 
.  204 
.  205 
.  207 
.  109 
.  210 
212 


.  215 


CONTENTS.  XIU 

PAGE. 

oxk    must  so    usk  his  puopekty   as  not  to  injure   ims 
Neighhou's  — 

Fletcher  v.  Itylnnds .  216 

Liability  rou  Injui:iks  ijy  Animals  — 

May  y.  JBiirdett 218 

SicLLiNd  Poison  with  Harmless  Label  — 

Thomas  v.  Winchester 219 

Removing  Support  of  Land  — 

ranton  v.  Holland 220 

Persons  Coming  ox  Another's  Premises  — 

Indcnnanr  v.  Dames 221 

Injuries  erom  Non-repair  of  Buildings  — 

Todd  V.  Flight 223 

Res  Ips.e  Loquitir  —  Presumption   t>F,  Negligence  from 
Accident  — 

Byrne  v.  Boadle .  224 

Responsibility  <>f  ^Master  foi:  Wilful  Acts  of  Servant  — 

McMamis  v.  Crickctt 225 

Employer  not  Liable  for   Negligence  of   Independent 
Contractor  — 

Ililliard  \ .  Ilichardson .  227 

Liability  of  Mastek  for  Injury  to  Pellow-Servant  — 

Priestley  v.  Fowler 229 

Farwell  v.  Boston,  etc.,  li.  Co 231 

Contributory  Negligence  — 

Butterjleld  v.  Forrester 233 

Davies  v.  Mann 234 

Imputed  Negligence  — 

Bennett  \.  Nexo  Jersey  li.  Co 235 

Contributory  Negligence  ov  Children  — 

Lynch  v.  Nurdin       ........  237 

Contributory  Nfgligence  of  Parent  — 

Uartjield  y .  lioper 239 

Proximate  and  Remote  Cause  — 

Scott  V.  Shepherd 240 

Fent  V.  Toledo,  etc.,  Ji.  Co 241 

PART  XA\  —  Miscellaneous  Touts. 

Nuisances  — 

St.  IIelen''s  Smelting  Co.  v.  Tipping        ....  243 


fl^wljl 


XIV 


CONTENTS. 


PAfiE. 

Falsi;  RioniESENTATioxs  — 

Paslcfj  V.  Freeman L'l5 

Lamjridge  v.  Levy i'48 

Rights  or  Fixokus  —  Posskssion  —  rijKst'.Mi'riov  — 

Annorij   v.  Delamiric         .......  251 

"Ix.ii'Kv"  WiTiiorr  Damagk  — 

xishhtj  V.    White 252 

Damage  Without  "  In.iikv"  — 

Chusemore  v.  Jlichards     .......  2,'ill 

Tkespass — 

The  Six  Carpenters^  Case 25(i 

PowEHs  OK  SiiEHirrs  — 

Semai/ne^s  Case        ........  258 

AcTioxs  Agaixst  Magistrates  — 

C repps  \.  Burden :;'(;i 

Maliciois  Pkoskcutiox  — 

Munns  v.  Dttpont 2(2 

Sl.AXnEI!  —  I)EEAMVTf»i:Y      WoUDS,      MHEN      ACTION  Alil.K       AND 

WHEX  Not  — 

Pollard  V.  Li/on 2ii;? 

Lnmb'j  v.  Alldaij 2(U 

Damages  in  Actioxs  or  Tout  — 

Vicars  v.  Wilcaeks    ....         ...         .  '>iX 

Lumley  v,  Gye .  2i;s 

No  COXTHIIUTIOV  ni-.TWEEX  DeKEX;)AMS  in  Tokt  — 

Merryiocather  v.  Nixan ^[V.) 


PART  XVI.— Evii.KNd.,  Kt.:. 


Hearsay  EvmKxcK  — 

Didsbnry  v.  Thomas ^71 

Declakatioxs  itv  Persox.s  Sixce  Deceased  — 

Price  V.  Earl  of  Torrimjton 27(; 

Declakatioxs  »y   Deceased  Persons   Against   tiikir    In- 
terest — 

Ilighamv.Iiidgway ^77 

PRE.SUMrTIOX  OF  DkaTH  FROM  AllSEXCE  — 

Nepean  v.  Doe <,-^ 


CONTENTS. 


l'A(iE. 

.  2 1 5 

.  i'48 

.  251 


ESTOPPKLS — 

Duchess  of  Iu)igston\'i  Case 
Local  axd  Tkaxsitohy  Actions  — 

Jlosti/n  V.  Fdhrigas  . 

USH  OK  lIlCiinVAYS  — Pl.KADING  — 

Dovaston  v.  P<(>jiie    . 


XV 

PAGE. 

.  27!) 
.  283 

.  284 


.  2,)(i 


258 


.  2(11 


• 

2(  2 

1",       AND 

2(1;? 

• 

2(:i 

2f;n 

•                          • 

2(;,s 

2!;;) 


271 


27C. 


TiiK  Pkincipai,  Maxims  OK  tiik  Law 

Taiji.k.  ok  AnnuKviATioxs    . 

Index    


.  287 
,  293 
.  301 


III    I.\- 


.  27«. 


i 


TABLE    OF    CASKS. 


i 


i 


i 


A(l;iins  V.  Lindsell 
Alger  V.  Thacher 
Armory  v.  Delainirie    . 
Ashby  V.  White  . 
AspdcMi's  Estate  . 
Atchinson  v.  Baker 
Atherford  v.  Beard 
Ayrc  V.  Craven    . 

Baily  v.  Do  Crespigny 

Bainbridge  v.  Firinstone 

Baldy  v.  I'arkt'r  . 

Bank  of  Colaml)ia  v.  Patterson 

Bartholomew  v.  Jackson 

Ratty  0.  Carswell 

Baxter  v.  Portsmoutli  . 

Beaumont  v.  Reeve 

Behn  v.  Burness 

Bcm;ett  ■«,  New  Jerse}^  R.  Co. 

Berkshire  Woollen  Co.  v.  Proctor 

Bickerdike   v.   Bollman 

Birkmyr  v.  Darnell 

Blackett  v.  Royal  Exchange  Ass.  ('( 

Borland  v.  Guffey 

Boston  Ice  Co.  v.  Potter 

Boston  and  ]\Iaine  R.  Co.  v.  Bartlett. 

Boulton   I'.  Jones 

Box  V.  Jubb 


PAGE. 

.    11 

.  98 

.  251 

.  252 
.•    78 

.  121 

.  !)7 

.  205 

.    Ill 

.  29 
.  G7 
.  53 
.  2 
.  139 
.  51 
.  37 
.  26 
.  235 
.  2U0 
.  157 
57 
.  85 
.  20 
.  23 
3 
.  25 
.  217 
(xvii) 


■'-■wppi 


xvm 


TAHLE    OF    CASES. 


PAGE. 

Boydell    v.  Drummoiid 71 

Bro!2;(l(Mi  V.  Marriott    .... 

.     97 

Brown  V.  Edginijtoii     .... 

.   137 

Brown  V.  Kondall         .... 

.     215 

Brunnnell  v.  jMacpherson 

.    181 

BnlUlcy  v.  Landon       .... 

.     38 

Buiin  V.  Riker     ..... 

.      97 

Burgess  v.  Hnxy           .... 

.   228 

Buttorfiold  V.  Forrester 

.   233 

B3'rne  v.  Boadle           .... 

.   224 

Carter  v.  Boehra           .... 

.    186 

Ca3'le's  Case 

.    199 

Chaiidelor  v.  Lopus      .         .     _     . 

.    134 

Chascmore   v.  Richards 

.   253 

Clayton  v.  Blakey        .... 

.    173 

Cleves  V.  Willoiighby  . 

.    1G6 

Coggs  V.  Bernard 

.    194 

Collen  V.  Wright          .... 

.    148 

Collins  V.  Blantern 

.     89 

Collins  V.  Godefroy     .... 

.      34 

Connecticut,  etc.,  Ins.  Co.   r.  Schaefci 

.    189 

Cook  V.  Bradley 

.     36 

Cooper  0   Kane    .... 

.     80 

Cornish  v.  Al)ingtou    . 

.    281 

Cowan  V.  Milbourn 

.      92 

Cox  V.  Hickman 

.    151 

Crosby  v.  Wadsworth  . 

.     59 

Crawford  v.  Russell     . 

.    103 

Crease  v.  Barrett 

.   274 

Crepps  V.  Durden        .         , 

.   261 

Cumber  v.  Wane 

.     35 

Cutter  V.  Powell 

.    123 

Da  Costa  v.  Jones 

.     97 

Dalbv  V.  India,  etc.,  Life  Ass.  Co. 

.    192 

TABLE    OF    CASES. 


XIX 


I'AGE. 

.  71 
.  97 
.  137 
.  215 
.  181 
.  38 
.  97 
.  228 
.  233 
.   224 

.  186 

.  199 

.  134 

.  253 

.  173 

.  :G6 

.  194 

.  148 

.  89 

.  34 

.  189 

.  3G 

.  80 

.  281 

.  92 

.  151 

.  59 

.  103 

.  274 

.  261 

.  35 

.  123 

.     97 
.    192 


Davies  v.  Mann  . 

Debenhani  v.  Mellon    . 

Denton  V.  Great  Northern  K.  Co 

Dcwi'y  V.  T'nion  School  Dist. 

Dexter  v.  Spear  . 

Didsbiiry  v.  Thomas     . 

Ditchburn  v.  Goldsmith 

Doe  V.  Bliss 

Dovaston  v.  Payne 

Duchess  of  Kingston's  Ca  .e 

Dnmpor's  Case    . 

Duncan  v.  Baker 

Dut^^on  V.  Gerrich         .    . 

Eastwood  V.  Kenyon    . 

ICIiason  v,  Ilenshaw 

Kllis  V.  Shetlield  Gas  Consumers' 

Khnore  v.  Stone 

Eltham  i'.  Kingsman    . 

Elwes  V.  Miiwc    . 

Evans  v.  Jones    . 

Farwell  v.  Boston,  etc.,  R,  Co. 
Fehhouse  v.  Bindley    . 
Pent  V.  Toledo,  etc.,  H.  Co. 
Fetrow  v.  Wiseman 
Flsli  V.  Kempton 
Fletchers  i'.  IJylands    . 
Frost  V.  Kniglit  . 

George  v.  Clagett 
Gcrst  V.  Jones     . 
Gil)bs  V.  Benjamin 
Gilbert  v.  Sykes 
Given  v.  Blann    . 
Godsall   V.  Boldero 


Co. 


I'AGE. 

.  234 
.  47 
.  204 
.  116 
.  266 
.  271 
.  97 
.  181 
.  284 
.  279 
.  180 
.  125 
.  169 

63 

6 

229 

68 

98 
174 

97 

231 

8 

241 

41 

148 
216 
118 

146 
137 
133 
97 
184 
192 


1 


XX 


TAHLE    OF    CASES. 


I'AOK. 

Good  r.  Elliott 

.     96 

Goss  r.  \ii<:c'nt    ...••• 

.     74 

Gulic'k  V.  Wanl   . 

.     87 

Hivdlcy  V.  BaxiMiihilr    ..... 

.    12.5 

Ilallett  V.  Wylie 

.    16o 

Ilarpir  v.  City  Ins.  ('  ; 

.    187 

Harper  o.  Little  ....■• 

.    140 

Ilartlii'ld  r.  Kopci'        ..... 

.   239 

Hartley  v.  Kico    ...... 

.     97 

Iligliam  r.  Ridgway     ..... 

.  277 

Hill  V.  Kidd        ...... 

.     97 

Hilliard  v.  Kichardsoii           .... 

.   227 

Hochster  v.  Do.  La  Tour       .... 

.   117 

Hockenbury  r.  IMeyors          .... 

.     32 

IJogiiis  V.  Plyinptou     .          .          .          .          • 

.    1.38 

Hole  V.  Sitting  IJouriu'  K.  Co. 

.   229 

Hollistor  V.  Nowlen      ..... 

.   20.'> 

Holinan  c.  Johnson      ..... 

.    106 

Holt  V.  Claroncieux 

.     44 

noi)kirk  V.  Page           ..... 

.    1.58 

Iloskins  c.  Paul  ...... 

.   183 

Housc'hokl  Fire  Ins.  Co.  v.  (.Jrant 

.      14 

Hunt  V.  Peake 

.     43 

Inderinaur  v.  Dames    ..... 

.   221 

Ingalls  V.  Bills 

.   202 

Jolly  I'.  Recs       ...... 

.     48 

Jones  V.  Bright   .          .          .          .          .          . 

.   137 

Jones  V.  Just       ...... 

.    133 

Jordan  v.  Norton         ..... 

.      19 

Keech  v.  Hall      ...... 

■.    169 

Kelley  v.  Ilenimingway         .       •  . 

.    153 

Kemble  v.  Farren         ..... 

.    126 

1 


PAGE. 

74 

87 

125 

1()0 

1H7 
140 
2.".!) 

97 
277 

07 
227 
117 

32 

229 

2  or) 

100 

4  1 

ir)8 

183 

14 

43 

221 
202 

48 
137 
13G 

19 


1G9 

la3 

y. 

126 

s 
■# 

TAIUJ:    OF    CASKS. 
4 


Kii'ksiiill    I^cwiTv  Ci).  r.  Fiiriu-ss   K*.  ( 
Ki'oiu    /'.   Scliooiiiiiiik'cr 
Ivvlo   r.  KavHiiaiiiili 

LiiiiipU'inIi   /".  HnttlnvMit 
L;in<j^ii(lii;(>   /'.  Levy 
Lvo  V.  (Ji'illiii 
Li{!l<l)a,T()\v  /•.  Mason 
Loffiis  V.  Miwv 
Loriiig  V.  City  of  Bost:)ii 
Lowe  -?'.  Peers 
Luiiiby   V.  AUday 
Liimley  v.  Oye    . 
Lumlcy  i\  Watrnoi' 
Lynch    /'.   Nnnlin 


^Int'lay  v.  Harvey 
Malpns    r.   London   it    Soiit 
INIanby  i\  Se:)lt    . 
^larriott  o.  Hampton   . 
Marzetti  v.  Williams    . 
IMason  0.  C'hapjx'll 
ATaster  v.  jNIiller 
."May  /'.  Bnrdett    . 
]Meriyvve.'itIier  r.  Xixaa 
Miller  V.  Ktiee 
^litclu'l  V.  Reynolds     . 
^litchell  V.  Kingman    , 
:\ritehell  v.  Keed 
^[ont!iL!;u  V.  Benedict  . 
^loss  V.  Gallimore 
IMost^ni  0.  Fuhrigas 
^Innns  v.  Dupont 
^[nrray  v.  Currie 
IMcManus  v.  Crickett  . 


west 


■vn   n.   Co. 


XXI 

27;-) 
52 
25 

39 
248 

GO 
IGl 
282 
9 
102 
2G4 
2G8 
2G8 
237 

7 

79 

45 

130 

255 

137 

158 

218 

2G9 

164 

101 

50 

282 

4G 

170 

283 

2G2 

228 

225 


% 


XXII 


TAIJLK    OF   CASES. 


PAdE. 

Ni'lsoii  V.  Livi'rpool    Bivwi-ry  Cu.          ....   '221 

>i'i';)C!n  r.  Doe    . 

.  278 

New  York  Centnxl  K.  Co.  r.  Kriiloff 

.  212 

Nichols  x\  IMarshnid     . 

.  217 

Noe  V.  Gibson     .... 

.    184 

Pulfrey  r.  Portliiiid,  etc.,  \\.  Co. 

.     32 

ranton  r.  Ilollaiid 

.   220 

Pasley  v.  Fivi'inaii 

.  245 

Paterson  v.  Oaiidaseciiii 

.   141 

Pat  tee  v.  (Jreeley 

.     93 

Payiu!  V.  Cave     . 

.       .5 

Pearee  v.  Brooks 

[)-) 

Peck  V.  r lilted  States  . 

.    110 

Peter  /'.  Coini)ton 

60 

Peters   /•.  Fleminji' 

.     42 

Philadelphia,  etc.,  R.  Co.  r.  D.-rl 

207 

Pollard  V.  Lyon  . 

203 

Price  V.  Earl  ot  Torriiigt:)i: 

27G 

Priestley  v.  Fowler 

229 

Pyin  V.  Campbell 

7G 

Railroad  Co.  r.  Lockwood    . 

209 

Rami  V.  Hughes  , 

28 

Reg  V.  Eliss         .... 

Reynolds  r.  Nugent     . 

Rigge  V.  Bell       .... 

274 

34 

172 

Robl)ins  I'.  Ciiicago      . 
Robinson  v.  Davison    . 

229 
J 14 

Roe  V.  Trainnar  .... 

119 

Rust  V.  Gott        .... 

97 

St.  Helen's  Smelting  Co.  v.  Tipping 
Sargent  v.  Adams        .... 

243 

Scott  V.  Ave:y     .... 
Scott  V.  Sliei)herd 

. 

91 

240 

.j                                                       TAllLi:    OF    CASES. 

will 

VAdK. 

I'AflE. 

.   221 

Si'Mtoii  r.  IJi'iK'dict        .          .          .          .          . 

,     47 

.   278 

Soiiiiiyiio's  Ciisi'   ...... 

.  2r>8 

.   212 

Slicrmiin  v.  Kitsmillcr           .         .         .         . 

.     16 

.  217 

SliiiidltT  V.  Houston     .         .         .         .         . 

.     70 

.    184 

Short  V.  Stotts     ...... 

.     59 

\         Simpson   r.  Iljirtopi)     .          .          .          .          . 

.   182 

.     32 

Six  CarpontiTs'  Cmsc,  'I'lit!    .          .          .          . 

.  2.-)(; 

.   220 

Smith  ('.  Miirrnble         .          .          .          .          . 

.    108 

.  24-) 

Smith  V.  Wilson 

.     83 

.   141 

Souticr  V.  Kt'llorman    .         .         .         .         . 

.     81 

.     0.'] 

Spencer's  Cuso 

.   178 

5 

Sprinj^  Co.  v.  Knowlton        .         ,         .         . 

.    108 

.     0') 

SI  ilk  V.  :\ryric'k   ...... 

.     35 

.    110 

Stone  V.  Wood    ..,,.. 

.   145 

.     60 
.     42 

Swift  V.  Tyson 

.   155 

.   207 

Tiuling  V.  Biixter        .         .         „         .         . 

.   132 

.   20;] 

Turry  v.  Asliton  .         .         ,         .         .         . 

.  224 

.   270 

Tiiyloe  V.  ]Merfh:nits'  Fire   Ins.  Co. 

.     12 

.   229 

Taylor  v.  Caldwell 

.    113 

.     70 

Thomas   v.  Winehester         .          .          ,          . 

.  219 

Thomson  v.  Da,venport         .         ,         . 

.   143 

.   209 

Thorogood  /;.  Bryan    .         ,         .         .         . 

.  236 

.     28 

Thurston  v.  Spratt       .          .          .          .          . 

.   137 

.   274 

Thurston  v.  Union  Pacitlcj  R.  Co. 

.  210 

.     34 

Tisdale  v.  Harris          .          ,          .          ,          , 

-      .          .     G5 

.    172 

Todd  V.  Flight    ....,, 

.   223 

.   229 

Tool  Co.  V.  Xorrls       .         .         .         .         . 

.     88 

.   114 
.    119 

Twyne's  Case      ....,„ 

.    128 

.      97 

Viears  v.  Wilcoeks       .          .          .          ,          . 

.  2G6 

.   243 

Viseher  v.  Yates            .         .          .          .         . 

.     97 

.     77 
.     91 
.   2^0 

Wiiin   ?'.  AVarlters          .          ,          .          .          . 
AVaugh  ('.  Carver          .         .         .         .         . 

.     62 
.   150 

XXI  v 


TABLE    OF    CAUSES. 


AVliatinaii  v.  Pcnrsoii 
Wlioadon  r.  OMs 
Wliilcoiiili  r.  \Miitiiii'- 
White  V.  Bliu'tt   . 
White  V.  C'orlics  . 
WiooU'sworth  r.  Dallisor. 
WiU:n'(l  V.  Stone 
AViiliaiiis  r.  (';ii'\v!ir(hiie 
Williiunsoii  /'.  Siiiiimiiis 
Wriohtmaii  r.  ('oatrs  . 


P.VOE. 

.    \:V2 

.  ir.8 

1 

.  171 
.  122 
.      22 

.  I. '5 7 
.    120 


Ydiinu'  V.  (irote  . 


;c.o 


Zalcski  r.  V\i\v\: 


IM 


P.VdK. 

227 
i;52 

ir.-") 

30 

1 

171 
122 
22 
i;57 
■20 


LEADING  CASES  SIMPLIFIED. 


I.  —  Formation  of  Contract. 


100 


IS 


TWO  REQUISITES    TO    CONTRACT,    VIZ. 
POSAL  AND  ASSENT. 


PRO- 


..« 


WHITE  V.  CORLIES. 


.1 


[■to  N.  Y.  4G7.] 

White  was  a  huildor,  and  Jorlies  &  Co.  were  mer- 
chants, all  doing  business  in  Now  York  City.  The 
latter  had  talked  to  White  about  refitting  their  offices, 
which  negotiations  culminated  in  their  sendinsr  a  note 
to  him  in  these  words  :  — 

*'  Upon  an  agreement  to  finish  the  fitting  up  of  of- 
fices 57  Broadway  in  two  Aveeks  from  date,  you  can 
begin  at  once." 

Now,  if  White  had  known  as  much  about  the  law  as 
he  did  six  years  later,  he  wouUl  scarcely  have  ])()Ught 
his  lumber  and  commenced  work  without  tellin<r  Corlies 
&  Co.  that  he  wouhl  take  the  jf>l).  But  tiiis  is  just 
what  he  did  ;  and  when  Corlies  &  Co.  the  next  day 


iki- 


2  LKAI>IN'(J    CASKS    snil'LiriKD. 

('..iintcniiMiidod  the  nvdcw  tlioiv  .seemed  nothing  for 
him  to  do  but  to  brii)«:-  ;iii  action  iigain.st  thoni  for  brcjieh 
of  contract.  But  Iuto  he  made  a  mistake  again,  for 
till'  Court  of  Ai>i)("als  of  New  Yoric  decided  that  there 
was  no  oontraot  to  sustain  an  action.  They  said  the 
rule  of  law  was,  tliat  wlien  an  otler  is  made  by  one  party 
to  another  when  they  are  not  together,  the  acceptance 
o{'  it  by  tlie  other  must  l)e  made  munifest  to  him. 
Until  that  is  done  there  is  no  contract.  True,  White 
hail  made  up  his  mind  to  accept,  for  he  l)ought  the 
hunber  and  commenced  work.  But  a  mental  deter- 
mination, not  indicated  by  speech  or  put  in  course  of 
indication  l)y  act  to  tlie  other  party,  is  not  an  accept- 
ance which  will  bind  the  other. 


BARTHOLOMEW  v.  JACKSOX. 

[20  Johns.  L'S;  11  Am.  Doc.  287.] 

liartholomew  and  Jackson  wcrc^  fanners  and  neigh- 
bors. A  stack  of  Bartiiolomew's  wheat  was  in  Jackson's 
tield,  which  Bartholomew  had  promised  to  reinovi;  in 
time  tor  ,lacksoii  to  })repare  thci  ground  for  sowing. 

The  time  having   arrived,  Jackson  scnit   a   message  to 
T?.,..fi>,.i, ,...,.„.    ,.ri.:,.i.  „.,..,  ,i..i;,„.,.,.,i  f,>  i.v,  r.,..>;i„  ;,.   i.:_. 


ine  uiiie  ii;i\iiii;  anivcu,  .jju'ksuu  .s(!iil  a  ine.ss;i:ic  lo 
Bartholomew,  which  was  delivered  to  his  family  in  his 
absence,  requesting  the  inuneiliate  removal  of"  the 
wheat  as  he  wanted  to  burn  the  stubble.  Bartholo- 
mew's sons  sent  l)ack  Avoi'd  that  they  woidd  remove 
it  the  next  morning.  15ut  the  ne.xt  morning  they  did 
not  appear,  and  so  Jackson,  having  commenced  to  burn 


lotliiiiii;  for 
I  for  brctich 
3  a<rain,  for 

that  there 
ey  said  the 
y  one  party 
acceptance 
it  to  him. 
rue,  Wliite 
l)ought  the 
iital  (k'ter- 
1  course  of 

an  accept- 


FORMATIOX    OF    CONTRACT.  3 

the  stul)l)h!,  and  believino:  the  stack  to  be  in  dan<ier, 
removed  it  liimsolf.  Jackson  tliouuht  some  one  ouulit 
to  pay  him  for  his  troubhs  and  although  the  Supreme 
Court  of  New  York  considered  it  very  unwoi-tliy  of  Bar- 
tiioh)me\v  to  resist  such  a  cUiini,  thev  were  ol)!!"^^!  to 
decide  tiiat  he  was  not  lei>allv  l)ountl.  AVhen  Jackson 
saw  I]arthoh)mew's  stack  in  danircr  of  ])urninii:  :ind 
Avent  to  work  to  remove  it,  he  imi)liedly  made  an  offer 
to  Bartlioh)mew  to  remove  it  for  him,  l)ut  it  was  an 
offer  which  was  uncommunicated  to,  and  unacccj)ted 
by  Bartlioh)niew,  and  therefore  there  was  no  contract 
on  whicli  Bartholomew  could  l)e  held. 


PROPOSAL    C^mxOT    BE    RETRACTED    AFTER 

ACCEPTANCE. 


and  neiii'h- 
1  tiackson's 

remove  in 
or  sowinix. 
nessau(!  to 
mily  in  his 
'al    of    the 

Bartholo- 
dd  remove 
•i"  they  did 
3cd  to  burn 


BOSTOX  AXI>  MATXE  R.  CO.  v.  BARTLETT. 

[;(  Ciish.  •l-l\\  Liiuiitl.  Cas.  on  Con.  10:5.] 

"  We  will  sell  you  our  land  for  $20,000  if  you  will 
take  it  within  thirty  days,"  wrote  the  defendants  in 
this  imi)ortant  case,  to  the  officers  of  the  Boston  and 
Maine  llaih'oad  Company.  The  officers  of  the  cor- 
poration thought  over  the  nialter  for  some  time,  and 
Hnally  several  days  before  the  thirty  days  had  expired, 
notiHed  the  defendants  that  they  would  accei)t  the 
oiler,  tendered  them  the  $l>(),000,  and  asked  them  to 


wmm 


LEADING    CASKS    SIMPLIFIKD. 


])iil    their  s!_n-ii;itur('s  to  ii  cU-cmI  of  the   luiid  in  proper 
form.     Then  the  defeiidunts  tried   to  l):ick  ont  of  the 
nirroenient,  but  the  Supreme  Judicial  Court  of  ^las- 
sachusotts  .said  it  was  loo  hite  to  do  that.      "  Thougli 
llie  writiiii:-  siiiiied  ^)y  the  .lefenchints  was  but  an  otfer, 
and  ail  oll'er  wliieh  ini^-ht  be  revoked,"  said  the  court, 
"  vet,   while  it  remained   in  force  and  unrevoked,  it 
was  a  continuino-  offer  durin<r  the  time  limited  for  ac- 
ceptance,  and  dnrinj.'  the  whole  of  that  time  it  Avas  an 
oiler,  evciT  instant  ;  but  as  soon  as  it  was  accepted  it 
ceased  to  be  an  offer  merely,  and  then  ripened  into  a 
contract.     The   counsel    for    the   defendants    is  most 
surely  in  the  riuiit  in  sayinii'  that  the  writing,  when 
made,  was  without  consideration,  and  did  not,  there- 
fore, form  a  contract.     It  was  then  but  an  ofler  to  con- 
tract;  and  the  i)artics  making  the  oiler,  most  undoubt- 
edly,  might  have   withdrawn    it    at    any  time    before 
acceptance.     But    when    the    ofier  was    accepted    the 
minds  of  tlu'  i)arties  met,  and  the  contract  was  com- 
plete.    There   was  then  the  meeting  of  the  minds  of 
the    parties  which    constitutes,  and    is    tlu;   definition 
of,  a    contract.     The    acticptance    by    the    j)laintiirs 
constituted    a    sufHcient    legal    consideration    for   the 
engagement  on  the  part  of  the  defendants.     There  was 
then  nothing  wanting,  in  order  to  perfect  a  valid  con- 
tract on  the  part  of  the  defendants.     It  was  precisely 
as  if  the  parties  had  mot  at  the  time  of  the  acceptance, 
and  the  offer  had  then  been  made  and  accepted,  and 
the  bargain  completed  at  once." 


FOHMATION    OF    CONTRACT. 


m  proper 
:)iit  of  the 
t  of  Mas- 
"  Thouo-li 
t  an  oiFor, 
the  court, 
evoked,  it 
id  for  ac- 
1  it  Avas  an 
^cepted  it 
led  into  a 
i  is  most 
ing,  when 
lot,  thcre- 
fer  to  con- 
;  undoubt- 
ne  before 
:?pted  the 
was  com- 
!  minds  of 
definition 
phiintilfs 
n  for  tlie 
Tliore  was 
valid  con- 
precisely 
cceptance, 
'pted,  and 


BWIJIXa  AT  AUCTION'S. 


PAYXK  V.  CAVE. 

[3  Term  Rop.  148  :   Limga.  Cas.  on  Con.  1 .] 

There  was  an  auction  sale  at  which  Cave  was  one  of 
the  bidders;  A  certain  article  being  put  up,  there  was 
some  spirited  ])idding.  Cave's  l)id  of  £40  l)eing  the 
last.  The  auctioneer  sang  out  -'  going,  going,  going," 
but  was  so  long  coming  to  "gone,"  that  Cave  said, 
"  Why  do  you  dwell?  you  will  not  get  more."  Still 
the  auctioneer  refused  to  knock  the  article  down,  and 
l)eii:an,  instead,  to  tell  the  spectators  Avhat  a  bargain 
thev  were  letting  slip.  Cave  again  interrupted,  and 
asked  the  auctioneer  if  ho  would  warrant  what  he  said. 
The  auctioneer  refused.  "Then,"  said  Ctuve,  "I 
won't  take  it."  No  one  else  wanting  it,  the  auc- 
tioneer was  forced  to  sell  it  next  day  at  a  loss  of  ten 
pounds  on  Cave's  bid,  against  whom  he  afterwards 
l)rou"-ht  an  action  for  the  dilt''M'ence.  But  Lord  Ken- 
vox,  who  tried  the  case,  was  of  opinion  that  Cave  was 
at  liberty  to  withdraw  his  bid  at  anytime  before  the 
liiimmcr  was  brought  down,  and  non-suited  the  plain- 
till'.  So  thought  the  whole  court  on  appeal.  The 
assent  of  both  parties,  tliey  said,  is  necessary  to 
make  a  contract  binding.  This  is  signified  on  the 
part  (>f  the  seller  by  bringing  down  the  hannner  or 
calling  out  "gone"  or  "sold,"  wiiicli  was  not  done 
here  until  the  defendant  had  retracted  his  oiler.  An 
auction  is  not  ina[)tly  called  Jams  pvenitentim  (a  place 


^m^ 


6  LEADING    CASKS    SnU'LiriEI). 

for  Topontancc).     Every  l)i(l  is  notliing  more  thiin  an 
ollVr,  wliich  is  not  biiuling  till  accepted. 


PROPOSER  MAY PRESClilBE  TIME,  PLACE  AND 
FORM  OF  ACCEPTANCE. 


ELIASON  V.  HENSHAAV. 


[4  Wlioiit.  L'25.j 


E.  &  Co.  ofFercd  to  l)uy  tlour  of  II.,  the  answer  to  be 
sent  by  the  return  of  the  wagon  which  carried  the  offer. 
H.  sent  u  letter  of  acceptance,  l)y  mail,  to  another  place, 
which  was  not  the  destination  of  tiie  waijon,  havinii: 
reason  to  l)elievc  that  his  answer  would  in  this  way 
reach  E.  &Co.  more  speedily.  The  Sui)reine  Court  of 
the  United  State:;  held  that  E.  &  Co.  were  not  bound 
by  the  acceptance  so  sent.  An  acceptance,  said  Mr. 
Justice  Washington,  communicated  at  a  place  dif- 
ferent from  that  pointed  out  by  E.  &  Co.,  and  forming 
apart  of  their  proposal,  im[)osed  no  obligation  l)indlng 
upon  them,  mdess  they  had  acquiesced  in  it,  whiidi  they 
declined  doing.  It  is  no  argument  that  an  answer  was 
received  at  another  place.  E.  &  Co.  had  a  right  to 
dictate  the  terms  n[)on  which  they  would  purchase  the 
flour;  and,  unless  they  were  com[)lied  with,  they  were 
not  l)ound  hy  them.  All  their  arrangements  may  have 
been  made  with  a  view  to  the  circumstance  of  place. 


re  thiin  an 


ACE  AND 


1 


^1 


FOJtMATION    OF    CONTRACT. 


and  they  were  the  only  judges  of  its  importance. 
There  was,  therefore,  no  contract  concluded  between 
these  23fU'ties. 


MACLAY  V.  HARVEY. 


iswcr  to  bo 
1  the  offer, 
ther  i)Iace, 
on,  haviiiijf 
I  this  way 
e  Court  of 
lot  bound 

said  ]\Ir. 
l)laoo  dif- 
kI  forniiiii; 
)ij  l)indini; 
vhich  they 
iiswer  was 
a  right  to 
rt'hase  the 
tiic}^  were 
1  may  have 

of  1)1  ace. 


[00  111.  525.] 

A  merchant  wanted  a  milliner.  In  a  neio-hborins: 
town  lived  Miss  Maclay,  who  was  open  to  an  engage- 
ment of  this  kind.  The  merchant  hearins:  of  her,  dis- 
patched  a  letter  offering  the  situation,  and  asking  for 
her  answer  by  return  mail.  Directly  she  had  read  the 
letter,  she  sat  down  and  wrote  her  acceptance  on  a 
postal  card.  But  instead  of  putting  this  in  the  post- 
office  herself,  she  gave  it  to  a  small  boy  to  post  for  her, 
which  small  l)oy  carried  it  in  his  pocket,  with  his  j^eg- 
toi)s  and  nK?rl>les,  for  four  davs  before  he  posted  it. 
Meanwhile  the  merchant  had  made  other  arranirements, 
so  that  when  Miss  Maclav  reached  his  store  accordins: 
to  the  terms  of  the  card  which  had  linijrered  in  the 
pocket  of  the  small  boy,  she  was  notified  that  her 
services  were  not  required.  The  Supreme  Court  of 
Illinois  hold  that  she  could  not  obtain  any  damages 
for  the  breach  of  a  contract  without  proving  a  contract 
to  commence  with.  She  had  proved  a  proposal  which 
required  that  she  should  assent  by  return  mail,  and  as 
she  had  not  assented  by  return  mail  (the  small  boy 
being  her  agent  in  the  matter),  but  by  a  mail  four  days- 


8 


LEADIXCr    CASKS    SIMIT  IFIEl). 


later,  slie  hiul  f:iil('<l  to  show  acooptance  of  the  mor- 
chaiiCs  ollor.  And  Jiidgiueut  was  given  against  the 
miUiiier. 


BUT  NOT  OF  REFUSAL. 


FELTHOUSE  v.  BIXDI^EY. 

[11  v..  w.  (N.  s.)  yuii.] 

All  uncle  and  nephew  having  voi'l)ally  treated  for 
the  purchase  of  a  horse  by  llio  former  of  1  lie  latter, 
the  nephew  wrote  to  the  uncle  stating  tliat  he  under- 
stood that  he  (the  uncle)  had  mistaken  the  price  he 
held  the  horse  at  —  thirty  guineas  was  the  price,  not 
thirty  jiounds.  To  which  the  uncle  reiilied  by  letter  : 
"Your  price,  I  admit,  was  thirty  guineas.  I  ollercd 
£30 ;  never  otl'ered  more,  and  you  said  the  horse 
was  mine.  However,  as  there  may  ])e  a  mistake  about 
him,  I  will  split  the  ditl'erenee.  If  I  hear  no  more 
about  him,  I  consider  the  horse  mine  at  £30  l")s." 
He  heard  no  more  about  him  ;  but  the  horse,  neverthe- 
less, was  not  his,  for  the  court  held  that  there  was  no 
contract  for  his  sale.  The  uncle  had  no  right  to  im- 
pose upon  the  ne[)hew  ii  sale  of  his  horse  for  £30  ir)s., 
unless  ho  chose  to  comply  with  the  condition  of  writing 
to  him.     The  nephew  might  have  bound  his  uncle  to 


FORMATION    OF    CONTRACT. 


9 


f  the  imn-- 
gainst  the 


''t' 
» 


the  biirgfiiu  by  writing  to  hini ;  hut  as  he  did  not  do 
this,  there  was  nothing  l)ut  an  open  offer,  Avhich  never 
ripened  into  a  contract. 


OFFER  MUST  BE  ACCEPTED  WITHIN  REASOX- 

ABLE  TIME. 


reated  for 
llie  hitter, 

ho  undor- 
e  price  he 

})rice,  not 

by  h'ttcr  : 
I  o  lie  red 
the  liorse 
take  about 
r  no  niorc 
£80  i:)s." 
,  nevcrthc- 
3ro  was  no 
izht  to  ini- 

£30  l.')s., 
of  writiniij 
s  uncle  to 


LORIXG  V.  CITY  OF  BOSTON. 

[7  Mete.  40;>;   Langd.  Cas.  on  Con.  09.] 

The  citizen.s  of  Boston  and  vicinity,  on  the  morning 
of  May  27,  1837,  read  this  advertisement  in  their 
newspapers. 

"  $1,000  reward.  The  frequent  and  successful  repe- 
tition of  incendiary  attempts,  renders  it  necessary  that 
the  most  vigorous  (efforts  should  bo  mado  to  prevent 
their  recurrence.  In  addition  to  tlio  other  precautions 
the  reward  heretofore  oifered  is  doubled.  One  thou- 
sand dollars  Avill  be  paid  by  the  city  for  the  conviction 
of  any  person   engaged   in  these   nefarious    practices. 

"  Samuel  A.  Eliot,  Mavor. 

"May  27,  1837." 

There  had  been  a  similar  advertisement  otfering  $500 
reward  in  the  newspapers  the  day  before,  and  both 
continued  to  api)oar  for  about  a  week,  when  they 
ceased.      No    notice    of  anv  time    durini;  which    thev 


10 


IJ'.ADIMi    CASKS    SI.MI'LIFIKI). 


wiiuM  lie  in  force,  nrofanyrovocatioii  of  llio  oTer,  was 
ever  iiKid.'  hy  \\\v  city  Miilhorilios.  In  Jauuiirv,  1.S41, 
Ihc  Annorv  IIoiiso  iiiid  scvcimI  o(1um-  Imihliiijrs  in  Bos- 
ton were  bui-ni  down.  Loring  and  another  person, 
suspect inir  who  the  incendiary  Avas,  eonelndctl  to  hunt 
liini  up  and  <xvi  the  reward  of  four  years  ago.  Thoy 
pursued  the  inccn(nary  to  New  York,  had  him  ar- 
rested, ])rought  hack,  convicted  and  sent  to  tiio  State 
Prison.  But  when  they  came  to  chiini  the  reward 
they  did  not  succeed  so  well,  for  they  had  to  sue  tlio 
city  for  it,oidy  to  he  tohl  hy  th(^  Supreme  Judicial 
Court  of  Alassachusetts  that  they  couhl  not  recover 
the  $1,000.  "  The  offer  of  a  reward  for  the  detection 
of  a  criminal,"  said  Chief  Justice  Shaw,  of  pious 
memory,  "  the  recovery  of  pi'operty  and  the  like  is  an 
oiler  or  proposal  on  the  part  of  the  person  making  it 
to  all  persons,  which  any  one  capahle  of  performing 
the  service,  may  accept  at  any  time  hefore  it  is  revoked 
and  perform  the  service  ;  and  such  offer  on  one  side, 
and  acce[)tance  and  performance  of  the  service  on  the 
other,  is  a  valid  contract  made  on  good  consideration, 
which  the  law  Avill  enforce."  lint  an  offer  cannot  ])e 
supposed  to  last  forever,  and  as  there  was  no  limit  in 
terms  in  the  advertisement,  then,l)y  a  general  rule  of 
law,  it  was  limited  to  a  reasonable  (hue,  that  is  to  say, 
the  service  must  he  done  or  the  offer  accicpted  within  a 
reasonahle  time  after  the  offer  was  made.  And  thi'ec 
vejirs  and  eight  months  was  not,  in  the  opinion  of  the 
Chief  Justice  and  the  other  meml)ers  of  the  court,  a 
reasonal)le  time  within  which  the  offer  in  question 
could  he  considered  as  a  contiiming  offer  on  the  part  of 
the  city.  And  so  Loring  and  his  partner  went  un- 
rewarded for  their  trouhle. 


FOKMATIOX  OF  CONTRACT. 


11 


o  oTer,  was 
iitirv,  1.S41, 
iijxs  ill  Bos- 
un" person, 
cd  to  liunt 
iiro.  Thev 
ul    him  ar- 

0  tho  State 
Mie   roward 

1  to  suo  tlic 
lie  Judicial 
lot  recover 
o  detection 
',  of  j)ious 
0  like  is  an 

.  making  it 

porfonning 

is  revoked 

II  one  side, 

ce  on  tho 

ideration, 

cannot  bo 

no  limit  in 

n-al  rule  of 

t  is  to  say, 

:m1  within  a 

And  three 

ion  of  the 

10  court,  a 

u  (juestion 

tho  part  of 

went  un- 


CONTRACTS  BY  POST. 


;s 


ADA3IS  V.  LIXDSELL.  , 

[I  Barn.  &  Aid.  (181.] 

Mr.  Lindsell,  wool-dealer  at  St.  Ives,  one  day  wrote 
a  letter  to  Messrs.  Adams  &  Co.,  woollen  manufac- 
turers of  Bromstrrove,  otlering  to  sell  them  a  quantity 
of  wool  at  a  certain  price,  hut  adding  that  he  must 
have  their  reply  if  they  wished  to  close,  "  in  course  of 
post."  Now,  whereas  l>romsgrovo  is  in  Worccstjr- 
shire,  Mr.  Lindsell  was  iijnorant  enouurh  to  address  his 
envelo[)o  to  "  Bronisgrove,  Leicestershire,"  and  in  con- 
sequence of  that  mistake  his  letter  reached  its  destina- 
tion several  days  late.  Directly  Adams  &  Co.  did  re- 
ceive it,  thinking  tho  otfer  a  decidedly  good  one,  they 
wrote  off  and  accei)ted  it.  But  in  tho  meantime  ]Mr. 
Lindsell  had  infei-red  from  their  silence  that  they  did 
not  want  his  wool,  and  the  day  before  their  letter 
reached  him,  but  alter  it  had  heen  posted,  had  sold  it  to 
some  one  else. 

This  action  was  brought  for  non-delivery  of  the 
Avool,  and  the  defendaut  contended  that  ho  had  a  riuht 
to  retract  his  otfer  till  notiticd  of  its  acceptance,  and 
urged  that  he  could  not  be  bound  on  his  side  till  tho 
plaintids  were  on  theirs.  But  the  court  said  :  "  If  that 
wore  so,  no  contracit  could  ever  bo  com[)leted  by  the 
post.  For  if  the  defendants  were  not  bound  by  their 
otfer,  when  accei)ted  by  the  plaintitfs,  till  the  answer 
was  received,  then  the  plaintitfs  ought  not  to  be  bound 


12 


LKAUINO    CAfSKS    ^^IMl'LIFIEI). 


till  litter  Iht'v  li;i<l  rccciwd  tho  notificiitioii  tliiit  the 
(lofeii.liints  Imdm-eivi'd  their  iiiiswin' iiiicl  iisseiitod  to 
it  ;  Mini  so  it  iiii-i-lit  <ro  on  ad  injinifum.  Tho  dtdciul- 
an'ts  must  ho  coiisidcivd  in  hiw  as  niiiking,  during 
ovorv  iiistiint  of  the  tiino  thoir  letter  was  truvoUing, 
the  smiio  idciitic.'d  oll'cr  to  tho  phdntitrs,  und  then  the 
contnict  is  completed  hy  the  iicceptiiiu'e  of  it  by  the 
hitter.  Then,  iis  to  tho  (h'hiy  in  notifying  tho  Jieeept- 
iiiiee,  thiit  arises  entirely  from  tho  mistake  of  the 
(lefendiiiits,  and  it  IhercfoiH"  nnist  be  taken  as  against 
them,  that  the  plaintitls'  answer  was  received  '  in  eonrse 
ot  post. 


TAYLOE  V.  3IERCIIAXT.S  FIllE   INS.  CO. 

[i»  How.  ;!!I0;  Lauixd.  Cas.  (»n  Con.  IOC.] 

Mr.  Tayh)o  (not  Tayh)r)  w.UiKd  to  insure  his  resi- 

•       T-»-    1  1    /I i...     \r' •...:.  TT i:.  .1  j. 


doneo  in  Richmond  County,  Vo'-fiiiia.  Ho  api)lied  to 
tho  h)eal  agent  at  Froderieksbuig,  and  after  considera- 
l)lo  eorresjjondenee  l)et\veen  the  hitter  and  the  head 
office  in  Baltimore,  tho  agent,  on  Decenil)er  2d,  wrote 
to  Tavloo  who  was  then  in  Alal)ama,  inforniiniji:  him 
that  his  a[)i)lication  had  been  ap[)rovcd  by  tho  com- 
pany, and  giving  him  the  rates  at  which  they  would 
'Msuro  him.  Tho  a^ent  havini:;  misdirected  the  letter,  it 
as  tho  2()tli  of  December  before  it  reached  him,  but 

,,.     ,>„»,f     .l..,r     /(1,„     01       *    \     '^P.,,,l,v„    ,...i-      ,1,.....,      .,...1    ,.,,...(,.     *].„ 


I 
in 

w 

th 


Luo  next  day  (the  21st)  Tayloo  sat  down  and  wrote  the 
agent  a  note,  telling  him  to  deposit  the  policy  in  the 
bank  and   enclosing    him  a   check    for  the    })reiniu'" 


rOKMATION    or    t;t'N  I'HACT. 


18 


II  that  tlio 

ISSt'llttMl    to 

Mu)  clcfeiu]- 

iiijf,   diiriiiu: 

tnivelling, 

(1  then  tho 

it  by  tho 

tho  iiocopt- 

iko   of  tho 

us  against 

'ill  ooui'so 


S.  CO. 


ro  his  resi- 
s  appliod  t') 
•  roiisi(U'ra- 
1  tho  head 
[•  2(1,  wroto 
nniiig  him 
f  tho  coin- 
thov  woiihl 
ho  lottor,  it 
d  him,  l)ut 
il  wrote  tho 
ilioy  in  tho 
premium. 


Tliis  was  rceeivod  on  tho  ."ilst,  but  on  the  night  of  tho 
2iM  tho  house  was  burned  (h)\vn.  Tho  insuranoo  com- 
pany refused  to  reeognizo  ]\Ir.  Tayloc's  chiim,  and  the 
Supreme  Court  of  the  United  States  were  ealled  on  to 
dooido  whotlior  Tayh)e's  accei)laiu'0  was  eoini)let(!  on 
tho  21st,  when  ho  posted  his  U'tter,  or  on  tho  31st 
when  the  agent  reeeived  it.  This,  one  ean  nnderstand 
at  a  glaiioe,  was  a  very  imiiortant  matter  to  Mr. 
Tayloe,  tor  if  tho  eourt  saitl  the  21st  was  tho  time, 
then  ho  would  i;et  his  insuraneo  monev,  otherwise  not. 
The  company  contended  that  they  had  a  right  to  with- 
draw their  otfer  at  any  time  before  notice  of  the 
acceptance  reached  them.  But  tho  court  decided  in 
favor  of  Tayloe.  An  otl'or,  thoy  said,  made  through  the 
niiiil,  inii)liodly  authorizes  an  answer  to  be  sent  in  the 
same  way,  and  the  oiler  cannot  bo  withdrawn  unless 
the  withdrawal  reaches  tho  party  to  whom  it  is  ad- 
dressed before  his  letter  of  renlv  aiinouncinijf  his 
accei)tanco  has  boon  mailed.  When  Tayloe  had  mailed 
his  letter  of  acceptance  ho  had  done  overvthiiig  which 
the  offer  rocpiircd  him  to  do.  Upon  any  other  view 
the  pro])osal  would  amount  to  nothing  and  no  contract 
would  ever  bo  completed,  as  the  acceptance  would  be 
but  the  adoption  of  the  terms  tendered,  to  bo  in  turn 
l)roposod  by  the  ap})! leant  to  the  company  for  their 
approval  or  rejection. 


u 


LEADINO    CASKS    SIMPLIFIED. 


IIOLSEH(>I.l>  FIRE  IXS.  CO.  v.  GRAXT. 

[4  Kx.  Div.  210.] 

Tlio  insurance  ngoiit,  in  Mr.  Ttiyloo's  case,  received 
his  letter  after  the  house  was  l)urne(l  down  :  and  in 
Adams  v.  LimUcU,  the  iin[)ortant  letter  which  Mr. 
Lindsell  wrote  about  his  wool,  and  which  he  mis- 
directed, (lid  at  last  reach  the  wool-manufacturers, 
thoniih,  so  far  as  Mr.  LiiulseH's  interests  woyg  con- 
cerned, very  much  behind  time.  \\\  both  of  these 
cases,  as  we  have  just  seen,  the  courts  decided  that 
the  contract  was  concluded  Avhen  the  letter  went  into 
the  post-office,  without  regard  to  the  time  when  it 
reached  the  person  to  whom  it  was  addressed.  But 
Mr.  Grant  waited  for  three  years  for  his  letter,  which 
never  came,  —  and  it  has  jirobably  not  come  yet ;  still 
this  did  not  make  his  case  any  ditlerent  from  Mr. 
Tayloe's  or  Mr.  Lindsell's.  Here  is  the  way  the 
trouble  came  about :  ^Ir.  Grant,  who  had  some  spare 
cash  to  invest  in  stock,  Avrote  to  th(^  Household  Fire 
Insurance  Company  (limited)  asking  them  to  allot 
him  one  hundred  sjiares  in  the  company.  The  secre- 
tary entered  his  name  on  the  books,  and  replied  l)y 
mail  th  the  shares  had  been  alloted  as  he  desired. 
Mr.  Grant  never  received  this  letter,  and  heard  nothing 
further  from  the  company  until  three  years  afterwards, 
when  there  came  a  notice  that  a  matter  of  $.')()()  or 
so  was  duo  from  him  for  assessments  on  his  shares. 
Then  Mr.  Grant  said  that  he  didn't  own  any  shares  in 
the  company  ;  that  his  application  had  never  received 
an  answer,  and  that  there  was  therefore  no  contract. 
But  the  English  Court  of  Ai)i)eal   thouirht  otherwise. 


FORMATION  OF  COXTUACT. 


16 


*' The  contnict,"  sjiid  Thesigeii,  L.  J.,  one  of  the 
leanied  judges  who  delivered  the  judgment,  '*  is 
jictuailv  made  when  the  letter  is  posted.  The  uc- 
ecptor,  in  posting  the  letter,  has,  to  use  the  lan- 
oiiaue  of  Lord  Blackbukn,  '  put  it  out  of  his  con- 
trol, and  done  an  extraneous  act,  which  clenches  the 
niaiter,  and  shows  beyond  all  doubt  that  each  side 
is  bound.'  How,  then,  can  a  casualty  in  the  post, 
whether  resulting  in  delay  —  which  in  commercial 
transactions  is  often  as  bad  as  no  delivery — or  iii 
non-delivery,  unbind  the  parties  or  unmake  the  con- 
tract? To  me  it  ap[)ears  that,  in  practice,  a  con- 
tract complete  upon  the  acceptance  of  an  offer  being 
j)osted,  but  liabh;  to  be  put  aii  <i\u\  to  by  an  accident 
ill  the  i)()st,  would  be  more  mischievous  than  a  con- 
tract only  l)inding  upon  the  parties  to  it  upon  the 
acceptance  actually  reaching  the  olfercr ;  and  I  can 
see  no  principle  of  law  from  which  such  an  anomalous 
contract  can  bo  deduced.  There  is  no  d()nl)t  that  the 
implication  of  a  complete,  linal  and  absolute  binding 
contract  bcinir  formed  as  soon  as  the  accei)tance  of 
an  olfer  is  ^M)stcd,  may,  in  some  cases,  lead  to  incon- 
venience and  hai'ilship.  But  such  there  must  be  at 
times  in  every  view  of  the  hiw.  It  is  impossible  in 
transactions  which  pass  between  parties  at  a  distance, 
and  hav(!  to  be  carried  on  through  the  medium  of  corre- 
s[)()iidence,  to  adjust  contlictiiig  rights  between  inno- 
cent i>arties,  so  as  to  make  the  conse(iuences  of 
misiake  on  the  part  of  a  mutual  agent  fall  e(pially 
u[)on  the  shoulders  of  bot'  .  At  the  sanie  time  1  am 
not  prepared  to  admit  that  the  implication  in  (piestion 
will  lead  to  any  great  or  general  inconvenience  or 
hardship.     An  otferer,  if  he  chooses,  may  always  make 


I 


i 


1 


16 


LKAD1X(J    CASES    SIMPLIFIED. 


the  formation  of  the  contract  which  he  proposes 
dependent  upon  the  actnal  oommnnictitiou  to  himself 
of  the  .'icceptiince.  If  he  trusts  to  the  post,  he  trusts 
to  !i  means  of  comnumiciition  which,  as  a  rule,  does 
not  fail,  and  if  no  answer  to  his  offer  is  received  by 
him,  and  the  matter  is  of  importance  to  liim,  he  can 
make  inipiiries  of  the  person  to  whom  his  offer  was 
athlressed.  On  the  other  hand,  if  the  contract  is  uot 
fmally  eonckided,  excei)t  in  the  event  of  the  accept- 
ance actually  reaching-  the  offerer,  the  door  would  he 
opened  to  the  perpetration  of  nuich  fraud  ;  and,  put- 
ting aside  this  consideration,  considerable  delay  in 
commercial  transactions  —  in  which  dispatch  is  as  rule 
of  the  greatest  consecpience  —  w-^nld  be  occasioned, 
for  the  acceptor  would  never  be  entirely  safe  in  acting 
upon  his  accei)tance  until  he  had  received  uotice  that 
his  letter  of  acceptance  ha<l  reached  its  destination." 
And  ]\Ir.  Grant  was  ordered  to  pay  his  calls. 


UNCEUTATX   AGREEMENT    DOES    NOT    MAKE 

CONTRACT. 


SHEUMAX  V.  KITSMILLER. 


[17  Scru'.  &  K.  15.] 

In    Pennsylvania,    about    fifty    years    ajxo,  old    Mr. 
Sherman  told   Elizabeth,  his  niece,  that   if  she  would 


rOUMATIOX    OF    COXTItACT. 


17 


Ml-. 


live  with  liiin  and  keep  lioiiso  for  him  until  somebody 
married  her,  he  woidd  give  her  ii  hundred  acres  of 
land.  She  thought  the  otler  a  good  one,  and  kept 
house  for  him  for  several  years,  and  until  she  was  mar- 
ried to  a  namesake  of  his  ;  but,  very  uidike  a  woman, 
she  never  once,  during  all  this  time,  asked  the  old  gen- 
tleman wJidt  hundred  acres  she  was  to  have.  By-and- 
hv  he  (lied,  and  as  he  had  never  carried  out  his  })roni- 
ise,  and  she  was  not  even  mentioned  in  his  Avill,  she 
brought  a  suit  against  his  administrator  i'or  the  breach 
of  his  [jroniise.  The  administrator  did  not  deny  the 
facts,  ])ut  said  that  "  one  himdred  acres  of  land  "  was 
really  t(t  indctiuite  a  (]uantity  to  form  a  legal  contract 
which  the  courts  could  enforce.  The  court  thought  so, 
too,  and  Klizabeth  ^\ent  away  empty-handed,  after 
listeninu"  to  the  followiniij  remarks  from  the  iudiic,  who 
dcilivered  the  oijiuion  of  the  court:  "  If  a  certain  ex- 
plicit, serious  promise  was  made  with  her,  and  the 
prouiise  was  certain  of  some  certain  thing,  it  would  ])e 
bin(ii;!g.  *  *  *  J^ut  th(>re  would,  in  the  present 
case,  bo  nothing  that  even  a  court  of  chancery  could 
decrees  performance;  of,  for  the  promisor  himself  would 
not  know  what  to  convey,  nor  the  promisee  what  to 
demand.  If  it  had  been  a  proniiso  to  give  her  one 
hundred  pieces  of  silver,  this  would  1)C  too  vague  to 
support  an  action, — for  what  [)iecesV  fifty-cent  pieces 
or  dollars?  of  what  denomination  ?  One  hundred  cows 
or  sheep  would  be  sufficiently  certain,  Ix'causo  the  in- 
tention would  l)e  that  they  should  l)e  at  least  of  a 
middling  quality  ;  but  one  hundred  acres  of  land, 
witiiout  location,  without  estimation  of  value,  without 
relation  to  anything  which  could  render  it  certain,  does 

ap[)ear  to  me  to  be  the   most  vauue   of  all    promises  ; 

'i 


4 


•Ik 


18 


LEADlN(f    CASKS    8IMPL1FEI). 


niul  if  tiMVcoiitrnct  can  bo  void  for  its  uncertainty,  this 
must  be.  One  liuuchcd  acres  on  the  Rocky  Mountains 
or  in  the  Conostoi^a  Manor;  one  hundred  acres  in  the 
Mountains  of  ILuiovcr  Countv,  Virirniia,  or  in  the 
Conewauii'o  ricii  lands  of  Adams  County  ;  one  hundred 
acres  of  Georue  Sherman's  mansion  i)lace,  jit  eiirhtv 
dollars  pei  acre,  or  one  hundred  acres  of  his  barren 
lands  at  tive  dollars?  The  promise  is  as  boundless  as 
the  terrestrial  globe.  The  party  would  lie  at  the 
morcj  of  the  jury;  there  would  be  the  same  reason 
for  ten  thousand  dollars  damages  as  for  ten  cents. 
The  court  cannot  enforce  such  an  uncertain  promise, 
and  the  defendant  nnist  have    judirnient." 


ZALESKI  V.  CL.ARK. 


[U  Coiin.  218.] 


Mrs.  Johnson  asked  Mrs.  Clark,  a  widow,  if  she 
would  not  like  to  have  a  bust  of  her  dear  departed. 
Mrs.  Clark  said  she  would,  very  much.  Then  Mrs. 
Johnson  told  her  of  a  friend  of  hers,  named  Zaleski, 
who  was  a  sculptor,  and  for  Avhoni  she  was  drummin"- 
up  business,  and  who  would  do  the  thing  in  first-class 
style.  She  wouldn't  run  any  risk,  for  she  need  not 
take  the  bust  unless  she  was  satisfied  with  it.  So  Mrs. 
Clark  conclndi'd  to  perpetuate  the  features  of  lier  hus- 
band in  plaster,  and  gave  Mrs.  Johnson  a  photogra[)h, 
from   which   Zaleski    made   his   cast.     When   it    was 


•A 


i 


FORMATION    OF    CONTRACT. 


W 


^1 
1 


liiiislu'tl  everybody  siiid  that  it  was  a  fine  piece  of  work, 
Ix'sidcs  being  an  accnrate  representation  of  the  de- 
ceased Clark.  But  Mrs.  Clarlc  was  not  satisfied  with 
it,  "When  the  sculptor  asked  her  why,  she  could  not 
nive  any  reasons  —  it  didn't  satisfy  her,  that  was  all 
the  satisfaction  he  could  <i:et.  80  he  brought  an  action 
I'di'  the;  ijrice  she  had  agreed  to  pay,  and  he  lost  it. 
He  had  contracted  to  satisfy  a  woman  —  a  widow,  at 
that.  This  was  sonicthing  too  uucertain  for  a  court  of 
law  to  atteni[)t  to  define.  If  the  sculptor  had  agreed 
to  make  a  l)ust  perfect  in  every  res[)ect,  and  one  which 
iho  defendant  oxujht  to  be  satisfied  witii,  the  court 
might  have  interfered,  for  that  (juestiou  could  bo  de- 
termined by  the  evidence  of  experts  on  the  subject. 
But  to  un<lcrtake  to  determine  that  she  was  satisfied 
with  it  was  a  thing  no  one  but  herself  could  do.  It 
was  a  very  unwise  agrecMuent  for  the  plaintilf  to  make, 
but  ho  had  only  himself  to  blame  for  it. 


C5 


ACCEPTANCE     JfUST     BE      IDENTICAL     WITH 

OFFER. 


class 
not 

Mrs. 

hus- 

•aph, 
was 


JORDAN  V.  NORTOX. 

[4  Meo.  &  \V.  155.] 

Farmei-  Norton  wrot'>  to  Farmer  Jordan,  olTering  to 
buy  a  particular  mare  if  the   latter  would  warrant  her 


20 


LKADIXU    CASKS    SIMrLIFIKD. 


'K^oHwl  ami  qnii't  in  harnes.'^/'  Ynvnivv  JorLiu  wmle 
hack  warrant iiiu-  lit'i'  ''■'^oiind  and  quiet  in  double  har- 
ness," l)iit  savin^ii-  he  had  never  put  her  in  sinr/Ie  luiniess. 
The  mare  was  taken  to  Norton's  hy  an  agent,  who  ex- 
ceeded his  authority  (und  whoso  act  was  iniDiediately 
repudiiitcd)  and  tlien  — as  the  experienced  reader  will 
have  foreseen — tunned  )•  '  'o  1)0  unsound.  This  Avas 
Farmer  Jordan's  acta  u  ;;."  price  of  the  mare,  and 
the  red  (jueslion  was  waoLue;  or  not  thero  was  a  coni- 
])lete  contract.  This  ';ne>^tion  was  decided  in  the 
neuative.  "  The  corresi-ondv  ce,  ..id  liaron  PAifivK, 
"amounts  altogether  merely  to  this:  ihat  the  defend- 
ant a<>-rees  to  give  twentv  auincas  for  the  mare,  if 
there  is  a  warranty  of  her  hi-ing  sound  and  (piiet  in 
harness  jrenorallv,  hut  to  that  the  plaintilf  has  not 
assented.  The  parties  have  never  contracted  in  writing 
ad  idem.'"  It  takestwo  to  make  acontract,  and  those 
two  must  have  agreeing  minds.  That  being  so,  an 
olfer  must  be  assented  to  in  the  precise  terms  in  which 
it  is  made. 


ACCEPTANCE  OF  ALTERED  PROPOSAL. 


BORLAND  V.  GUFFEY. 

[1  Grant's  Cas.  394.] 


The  dramatis  personiB  of   this  caso  arc   four:   (1) 
Fullwood,  an  inn-keeper  with  more  debts  than  lie  can 


FORMATIOX  OF  CONTRACT. 


21 


couveiiloiitly  pay;  (2)  Borliiiul,  u  prospective  piir- 
cluisei'  of  Fiilhvood's  imi ;  (o)  Giilley,  a  creditor  of 
Fiillwood's,  and  very  anxious  about  liis  debt ;  (4)  Wil- 
liam Gudcy,  his  son.  Act  I.,  Scene  1.  BorhimVs 
ILmsc. — Enter  William  with  a  message  froiu  his 
father,  that  if'Borhuid  will  not  airi'ce  to  see  him  paid 
ho  will  attach  Fullwood's  property  at  the  inn.  To 
William,  Borland  replies  that  ho  will  see  his  father's 
dol)t  paid,  provided  hcAvill  not  take  out  an  attachment 
against  Fullwood's  property,  and  will  llkeivise  heep 
quiet  and  let  no  jjcrson  know  anythimj  about  it.  Scene 
2.  —  William  return.^  from  his  errand  and  relates  what 
Borland  has  said,  (julley,  Sr.,  replies  that  that  is  sat- 
isfactory, but  omits  to  send  AVilliam  back  with  a  mes- 
sage to  Borland  to  that  ellect.  Nevertheless,  he  refrains 
Trom  attaching  the  pro[)erty.  Act  II. — The  whole 
scene  is  now  in  the  Sui)renu!  Court.  Borland  didn't 
see  him  paid,  and  Gulley  has  sued  him.  But  much  to 
his  disgust  he  is  told  that  there  was  no  contract,  for  it 
was  essential  that  Borland  should  have  been  notitied 
of  his  assent  to  the  new  terms  in  his  proposal  —  the 
I'.ttle  matter  concerning  kec[)ing quiet.  Exeunt  onmes 
to  slow  music,  GufTey  minus  his  money. 


9 


Q9 


LEADING    CASES    SIMl'LIFIEl). 


PROPOSAL    TO  rXAsCEPTAlKED  PERSON. 


WILLIA3IS  V.  CAKWAKDIXi:. 

{\  Barn.  &  Adol.  (ii'l;  Lnn-td.  Cas.  on  Con.  12.] 

Williiun  Ciirw.-irdiue  caused  a  hjuid-billto  bo  printed 
and  distributed  wliieh  stated  tliat  whoever  would  give 
.sueli  iufonnatiou  as  would  lead  to  the  discovery  of 
the  nuirdercr  of  his  brother,  AValter,  should  receive 
twenlv  pounds.  Soon  after  this  advertisement  was 
issued,  Marv  Ann  Williams  was  l)adly  beaten  l)y  a 
man  she  was  livinir  with,  and  ])elieving  she  had  not 
\o\vs  to  live,  and  to  ease  her  conscience,  she  iriive  infor- 
mation  which  led  to  the  conviction  of  the  man  who 
had  beaten  her  for  the  murder  of  Walter  Carwardine, 
He  was  hanged,  but  she  recovered  and  brought  an  ac- 
tion for  the  twenty  pounds.  The  jury  found  that  other 
motives  than  the  olfer  of  the  I'cward  had  in'duced  her 
to  oive  the  information.  Nevertheless,  all  the  iudires 
of  the  King's  Bench  ex[)ressed  the  opinion  that  she  was 
entitled  to  it.  Dexmax  C.  J.  :  "  The  plaintiti' l)y  hav- 
injTj  jfriven  information  Avliich  led  to  the  conviction  of 
the  murderer  of  Walter  Carwardine,  has  bron<>-ht  her- 
self  within  the  terms  of  the  advertisement,  and  there- 
fore is  entitled  to  recover."  Littledale,  J.  "  The 
advertisement  amounts  to  a  general  promise  to  give  a 
sum  of  money  to  any  person  who  shall  give  information 
which  might  lead  to  the  discovery  of  the  otfender. 
The  plaintiff  gave  that  information."  Pauke,  J.  : 
"  There  was  a  contract  with  any  i)er.son  who  performed 
the  condition  mentioned  in  the  advertisement."  Pat- 
Tisox,  J  :  "I  am  of  the  same  opinion.  Wo  cannot  go 
into  the  plaintiff's  motives." 


FOiaiATlOX    OF    CONTRACT. 


23 


MISTAKE  AS  TO  PEh'SOX  CONTRACTING. 


BOSTOX  ICE  COMPAXY  v.  POTTER. 


[IL'.T  Mass.  28.] 

During  the  early  part  of  the  suniiiier  of  1878,  the 
Boston  loo  Coniiiiiny  supplied  Mr.  Potter,  of  the  Hub, 
with  ieo  for  his  tea  and  claret ,  and  for  the  household 
generally.  For  some  reason  or  other  —  perha[)s  they 
irave  him  short  weight  or  too  mueh  straw  and  dirt  — 
he  determined  to  try  another  ice  man,  and  having  heard 
favorable  rejjorts  of  the  Citizens'  Ico  Company  ho  made 
a  contract  with  them.  For  about  a  year  the  wagons 
of  the  Citizens'  Company  drove  up  daily  to  the  door 
of  the  Potter  mansion,  when  one  morning  a  wagon 
of  the  Boston  Company  ap[)eared  on  the  scene  as  of 
old.  From  that  day  forward  the  Citizens'  wajjons  no 
lonijer  came  that  way,  but  ice  vras  reirularly  delivered 
to  ]Mr.  Potter's  servants  by  the  Boston  Company.  The 
reason  for  this  change  was  that  the  latter  company  had 
bought  out  the  former,  ice  wagons,  horses,  and  every- 
thing including  the  privilege  of  supplying  ice  to  the 
customers  of  the  Citizens'  Company.  But  of  this  ^Nlr. 
Potter  was  sul)lim(!ly  ignorant,  and  when  at  the  end  of 
the  season  a  bill  was  presented  to  him  for  ice,  which  had 
been  consumed  in  his  house  during  several  months, 
and  which  had  l)con  supplied  by  the  Boston  Comi)any, 
he  refused  to  pay  it.  The  company  sued  for  the  ac- 
count, but  were  unsuccessful.  Mr  Potter,  it  was  held, 
had  never  expressed  his  assent  to  a  contract  for  ice 
with  the  Boston  Company,  and  there  was  no  implied 


r5 


21 


LKADIXO    CASKS    SIMPLiriKD. 


iissoiit  on  liis  i):ir(  iVoiii  liis  receiving  iind  using  Iho  loo, 
xM'Miisc  he  had  no  knowU'dgo  that  it  was  fiirnish(>(l  l)y 


1 

the  phiinlill';  l>ut  siii)p()sed  that  he  was  receiving  it 
from  the  C'ili/ens'  Company.  "A  l):irty  "  said  E\Di- 
coTT,  J.,  "has  a  right  to  select  and  detennino  with 
whom  he  will  contract,  and  cannot  have  another  person 
thrust  upon  him  withont  his  consent.  It  may  bo  of 
im[)ortanee  to  him  who  performs  the  contract,  as  when 
lie  contracts  with  another  to  paint  a  pietnr(>,  or  write  a 
hook,  or  furnish  articles  of  u  particular  kind,  or  when 
ho  relies  upon  the  character  or  ([ualities  of  an  individ- 


ual, or  has,  a- 


tliis  case,  reasons   whv  ho  does  not 


wish  to  d'jal  with  a  particular  party.  In  all  those  cases, 
as  he  may  contract  with  whom  he  pleases,  the  snfH- 
ciency  of  his  reasons  for  so  doing  cannot  be  inquired 
into.  If  the  defendant  before  receiving  tlu^  ieo  or  dur- 
ing  its  delivery  had  received  notice  of  the  change,  and 
that  the  Citizens  Company  couhl  no  longer  perform  its 
contract  with  him,  "t  would  then  have  been  his  un- 
doubted riliht  to  have  rescinded  the  contract  and  to 
decline  to  have  it  executed  by  the  plaint  ill',  lint  this 
he  was  unal)le  to  do  because  the  plaintilf  failed  to  in- 
form him  of  that  which  ho  had  a  right  to  know.  If 
he  had  received  notice  and  continued  to  take  the  ice  as 
delivered  a  contract  would  be  implied.  A  case  in 
England  "  the  judg(!  added,  "  was  very  like  this.  Quo 
Jones,  who  had  been  in  the  habit  of  d(?aling  with  Brockle- 
hurst,  a  pipe-hose  manufacturer,  sent  him  an  order  for 
fifty  feet  of  leather  hose.  It  happened  that  that  very 
day  Brocklehurst  had  been  l)ought  out  by  Boulton,  his 
former  foreman,  who  executed  the  order  and  sent  the 
goods  to  Jones,  without  irivini;- him  notice  that  the  <»-o()ds 
were  supi)lied  by  Boulton  and  not    bv  Brocklehurst. 


FORMATION    OK    COXTKACT. 


25 


Tho  Court  of  Kxc'licquor  docldcd   tliiit   Boiiltoii  could 
r.ot  niaiiitaiu  uii  uctioii  agaliist  Jouos  for  tliolr  [)riec."^ 


MISTAKE  AS  TO  SUBJECT  MATTER. 


KYI^E   V.  KAVAXAITGH. 


[103  Mass.  i55(!.] 


]Mr.  Ka'Io  agreed  lo  sell,  and  ^Ir.  Kavaiiaugh  to  buy, 
a  lot  of  land  on  Prospeot  Street,  in  the  town  of  AVal- 
tliiun.  Jsow,  it  happened  rather  oddly  that  there  were 
t^ro  Pros[)eet  Streets  in  Walt  ham,  and  when  Mr.  Kav- 
aiiatiuii  was  taken  round  by  ^Ir.  Kyle  to  inspect  the  land 
he  had  bought,  he  found  that  it  was  on  the  other  Pros- 
pect Street,  and  was  not  the  land  he  had  been  thinking 
of  at  all.  So  ^Ir.  Kavanauiih  refused  to  take  it,  and 
in  this  he  was  sustained  by  tho  court,  it  beinu;  held 
that  wliere  one  i)artv  was  neirotiatin<>:  for  one  tiiine: 
and  the  other  selling  anotlier  and  ditlerent  thing,  and 
their  minds  did  not  agree  as  to  the  subject  matter, 
tlierc  could  l)e  no  contract  by  which  either  could  be 
l)ound  ;  and  tliis  would  be  so  where  there  was  no 
fraud  on  either  side  —  notliinii:  more  than  a  mistake. 


) 

s 


'  Boiiltun  r.  Jones,  2  Hurl.  &  N.  r)(J4. 


26 


LEADING    CASK8    ^IMIT.IKIKT). 


HEruKSKS'i\  1 TK >.v.s  . ixn  ]rAiiJUxriE,s. 


jjEiiv  \.  ijri{M-:ss. 


[1  Bestv<:  S.  H77;  ;t  Bi'st  .<:  S.  7.")1.] 

Bv  a  c'li!vrl(>r-p!irly  (hiU'd  tlio  liUli  of  Ocfohcr,  ISOO, 
tliu  pliiiiiliir  aiiTccd  MS  "owner  of  tlu>  <i-oo(l  hihip  or 
vessel  oiilled  the  MnrlalMUi,  of  four  liniKlrecl  juid 
twenty  tons  or  tliercahouls,  noir  in  lh<'  port  of  Am- 
sterdam,^' to  proceed  to  Newport  and  there  load 
u  car<j;o  of  coals,  wliicli  siie  should  carry  to  Hong 
Kontjf.  Unlbrtunately,  the  fjood  ship,  the  ^Nlartahan, 
was  not  just  then  ''  in  the  port  of  Amsterdam,"  and 
did  not  arriv(^  until  the  23d.  Wherefore,  when  she 
reached  New[)ort,  the  defendant  refused  to  load  a 
carijo  and  repudiated  the  contract.  The  plaintilF  then 
brought  an  action,  and  the  question  was  whether  the 
words  "  now  in  the  })ort  of  Amsterdam  "  amounted  to 
a  warranty,  the  breach  of  which  entitled  the  plaintilF 
to  repudiate  the  conti'act,  anil  the  court  decided  that 
they  did.  "  Properly  speaking,"  said  Williams,  J., 
in  giving  judgment  in  the  Exchequer  Chamber,  "  a 
representation  is  a  statement  or  assertion  made  by  one 
party  to  the  other  l)efore  or  at  the  time  of  the  con- 
tract of  some  matter  or  circumstance  relatinu:  to  it. 
Though  it  is  sometimes  contained  in  the  written  in- 
strument, it  is  not  an  integral  part  of  the  contract, 
and  consequently  the  contract  is  not  broken,  though 
the  rei)resentation  proves  to  be  untrue  ;  nor  (with  the 
exception  of  the  case  of  policies  of  insurance,  at    all 


FORRIATION    OV    CONTRACT. 


«7 


ovoiit!=,    niiirino    policies,   which    stiiiid    on   !i    pcculisir 

anomalous    footing)'    i.s    such    uutruth    Jiny    Ciiuse     of 

action,  nor    has    it  any  clticacy  wh.*itov(M-   unless   ^'ic 

icprcscntiition  was  inudo  frau(hilcntly,  t'ithcr  by  r^asou 

of  its  hcinj^  niado  with  ii  knowhMlLn;  of  ils  untruth,  or 

l)V  reason  of  its  heinii;   math)  ilisiiouostlv,  with  ii  reck- 

less  ignorance  whethei- it  was  true  or  untrue.      *     *      « 

But  with  respect  io  statciiUMits  in  a  contract  descrip- 

.*  .  .  .  .  . 

(ivc  of  the   sul)ject-njattcr   of  it,  or  of  sonu;   material 

incident  thereof,  tlu^  true  doctrine,  estahlished  by 
p:i!ci|)le  well  as  authority,  appears  to  b(%  generally 
spcakin;  at   if  siu'h  descri[)live   statement  was  in- 

tended to  r>e  a  substantive  part  of  the  contract,  it  is  to 
bo  regarde(l  as  a  warranty  ;  that  is  to  sa^',  a  condition 
on  the  failure  or  iu)n-performanc(!  of  which  the  other 
party  may,  if  ho  is  so  minded,  repudiate  the  contract 
hi  fo(Oy  and  so  bo  relieved  from  performing  his  part  of 
it,  provided  it  has  not  been  partially  exeouted  in  his 
avor. 


'  Seo  Carter  v.  Bouhm,  post,  p.  lS(i. 


I 


28 


LEADING    CASES   SIMPLIFIED. 


IT.  —  C0XS1DERATI0X= 


A   CONSIDERATION  NECESSARY  TO  SUPPORT 

A  CONTRACT. 


I.AXX  V.  HUGHES. 


[7  Tonii  R(.p.  ;!,"jO.] 

^lorc  than  a  hundred  years  airo  Mr.  Rami  brought 
an  action  against  Isahelhi  Hughes  on  ii  promise  whieh 
she  had  made  to  him  to  pay  him  a  sum  a  little  less 
than  one  thousand  [xxinds,  whieh  he  claimed  to  be  due 
from  the  estate  of  \vhi(  h  she  was  the  administratrix. 
The  Court  of  King's  Bench,  the  Court  of  Ex('he(|uer 
Chamher,  and  finally  the  highest  tribunal  in  England, 
the  House  of  Lords,  wrestled  with  the  case  for  a  long 
time,  l)ut  tlie  u[)shot  of  it  was  that  Mr.  Rann  was 
informed  that  he  could  not  recover,  as  he  had  not 
shown  any  consideration,  i.e.,  any  benefit  in  mone}''  or 
.'Miything  else  which  the  defendant  had  received  for 
making  the  promise.  "  It  is  undoubtedly  true,"  said 
Lord  Chief  Baron  Skyxxer  ''that  every  man  is  by  the 
law  of  nature  bound  to  fulfil  his  enu:aijements.  It  is 
e(|uallv  true  that  the  law  of  this  country  sui)plies  rio 
means,  nor  alfords  any  remedy,  to  compel  the  perforr,i- 
unce  of  an  asxreement  made  without  sufficient  cons'd- 


CO:,'SIDE  RATION 


29 


(■ration.  Such  agreement  is  nuduDi pricluiu  e.cquo  uon 
on'fur  actio,"  the  Ltitiii  he  quoted  being  an  ancient 
maxim,  which  ])eing  done  into  English  reads:  "No 
cause  of  action  arises  from  a  ])are  i)roniisc." 


ADEQUACY  OF  COXSU >EHATIOX  IMMATERIAL. 


BAIXI$!{Il)(iE   V.  FIK3ISTOXE. 


[8  Ad.  &  E.  7t:5;  Laiiir.l.  (":is.  on  Con.  20'.).] 

Firmstone  was  worse  tlian  the  man  who  would  l)or- 
row  your  nm])rella  on  a  rainy  day  and  then  forget  to 
return  it :  for  Firmstone  would  not  only  not  return  it, 
but  if  you  should  remind  hini  of  the  circumstance 
Avould  tell  you  that  if  you  wanted  your  umbndla  you 
would  have  to  hire  the  sherilf  to  get  it  for  you.  For 
this  is  exactly  the  way  he  served  Bainbridge.  The 
latter  owned  two  boilci's,  and  one  day  Firmstone  came 
to  him  and  tohl  him  that  he  would  like  to  l)oi-r()W 
those  boilers,  and  take  them  over  to  his  place  and  put 
them  on  his  scales  and  see  how  much  tliev  weiu^hed. 
Now,  as  Firmstone  did  not  want  to  buy  the  I)oilcrs,  or 
to  use  thcin  in  any  other  way,  this  was  rather  an  odd 
request.  But  Firmstone  promising  to  return  them  in 
ffood  order,  Bainl)ridLrc,  the  accommodatiuii:  neiirhbor 
that  h<'  v/as,  let  him  have  them.     Sad  to  relate  he  broke 


,!,> 


I 


30 


LKADINCf    CASES    Sl.MrLIFIED. 


his  ]iromis(\  iind  when  r>:iiii1)i'ulgo  brought  an  iictioii 
Luighod  ill  Ills  slccvi',  for  lie  had  read  enough  la^v  to 
know  that  a  contract  without  a  consideration  won't 
hold,  and  what  consideration  is  there  in  giving  one  an 
oiiportuiiity  to  weigh  boilers,  argued  he.  But  Lord 
Dkxmax,  C.  J.,  thouirlit  the  suit  was  "well  enouijh. 
The  defendant  had  some  reason  for  wishing  to  weigh 
the  boilers,  and  he  could  do  so  onl}'  bv  obtaining  per- 
nnssion  from  tlu;  plaintiif,  v/hich  he  did  obtain  by 
promising  to  return  them  in  good  condition.  "We 
need  not  inijuire  what  benetit  he  expected  to  derive. 
The  i)l!iintiir  niiirht  have  i^iven  or  refused  leave." 
And  Pattisox,  J.,  thought  so  too.  "  I  suppose  the 
defendant  thought  he  h:id  some  l)ene(it,"  said  he,  '*  jit 
any  rate  there  is  a  detriment  to  the  plaintift'  from  his 
parting  with  the  possession  for  even  so  short  a  time." 
So  that  merelv  "allowing  tcj  weiirh  "  is  a  sufficient 
consideration  for  a  promise. 


BUT  CONSIDERATION  MUST  BE  REAL. 


AVIIITE    V.   liT.I^ETT. 

[L'3  L.  J.  (Exch.)  3(5.] 

A  son  had  been  constantly  complaining  to  his  father 
that  he  did  not  givi;  him  ;is  much  inonev  or  the 
same  advantages  that  he  gave  the  rest  of  tlie  familv. 


CONSIDKHATION. 


31 


FiiKillv",  one  day,  ho  proposed  a  treaty  of  peace.  "  If 
vou  woii't  ask  mo  to  pay  that  note  of  mine,  I  won't 
l)()ther  you  about  these  thuigs  any  more,"  said  the 
son.  "All  right,"  re[)liod  the  father,  who,  some  time 
after,  died,  Avithout  destroying  it  or  giving  it  up. 
When  the  executors  came  in,  they  found  the  note 
among  his  papers,  and  brought  an  action  on  it  against 
the  son,  who  pleaded  his  father's  promise,  without 
avail.  "  Is  an  agreement,"  cried  Baron  Parke,  with 
astonishment,  "  is  an  airreement  bv  a  father,  in  con- 
sidcration  that  his  son  will  not  bore  him,  a  binding 
contract?  Fudge!"  His  lawyers  tried  to  convince 
theother  judges  that  it  was,  but  with  the  same  success. 
"  If  such  a  plea  as  this  could  be  supported,"  said 
Chief  Baron  Pollock,  "  the  followini!;  would  be  a 
binding  promise :  A  man  might  complain  that  another 
person  used  the  public  highway  more  than  he  ought 
to  do  ;  and  that  other  might  sa}',  '  Do  not  complain, 
and  I  will  give  you  five  pounds.'  It  is  ridiculous  to 
supi)ose  that  such  promises  could  be  binding.  So, 
if  the  holder  of  a  bill  of  exchange  were  suiniji;  the 
aocc[)tor,  and  the  a('ce[)t()r  were  to  c()m[)lain  that  the 
holder  had  treated  him  badly,  or  that  the  bill  ought 
never  to  have  been  circulated,  and  the  holder  were  to 
say,  '  Now,  if  you  will  not  make  any  more  com[)laints 
I  will  not  sue  you,'  such  a  promise  vrould  bo  like  that 
now  set  up.  In  reality  there  was  no  consideration 
whatever.  The  son  had  no  right  to  com[)lain,  for  the 
father  might  make  what  distribution  of  his  property 
he  liked,  and  the  son's  abstaining  from  doing  what  he 
had  no  right  to  da,  can  be  no  consideration." 


CO 

:?3 


It-: 


32 


LEADING    CASES    SIMPLIFIED. 


FORBEAUAXCE  TO  SUE  A  SVFFICIEXT 
COXSIDERAriOX. 


HOCIvi:XBUUY  V.  3IEY'EUS. 

[:U  X.  J.  (L.)  340.] 

Mrs.  Movers  hold  Joliii  Ilockoiiljiirv's  note  for  $1 ,000 
wliicli  was  ovordiie  .'ind  un[):iid,  and  she  thrciitoned.  to 
sue  liiin  unless  Ik^  could  lind  soeuiity.  lie,  therefore, 
Avrote  to  his  hrothor  Asa,  Iclliui;'  hiui  the  fix  ho  was  in, 
and  to  pacifv  the  lady,  Asa,  who  doubtless  was  a  man 
of  suhstanoe,  i)ut  his  naui(>  on  the  l)ack  of  the  not(>. 
Two  3'cars  more  passed  williout  Mrs.  Meyers  seeing  her 
money  and  then  sJic  lost  all  paticuice  and.  did  .sue. 
"  You  can't  ii'et  anvthiiiu' out  of  me,"  i-hiickled  Asa, 
*'  because  my  promise;  was  voluntary  and  without  con- 
sideration."' But  tile  court  gave  jndj:nient  against  him 
on  the  ground  that  forbearance  to  sue  was  enouirh  to 
support  a  contract. 


PROVIDED  THERE  IS  A  LE(fAL  CAUSE  OF 

ACTIOX. 


PALFREY  V.  I'ORTLAXI),  ETC.,  R.  CO. 

[4  Alien,  .">.] 

One  of  the  glories  of  the  common  law  was  to  ciony  an 
action   for  damages  occasioned    bv  the  death  of  a  hu- 


CONSIDERATION. 


33 


niMii  ])eiiio\  A  very  dis{igreoal)lc  personage,  thiit 
figures  in  the  Isiw  reports  with  grout  fVe(|uency,is  tlic 
modern  corponition,  which,  recognizing  its  laclc  of 
a  body  to  bo  kiclicd  or  a  sou^  to  bo  damned,  gen- 
erally manaires  to  crawl  out  of  its  oblii>;ationS  and 
evade  its  liabilities  l)y  the  help  of  very  technical  and 
unriuhteous  defenses,  rjtween  these  two  Mrs.  PmI- 
iVey  came  to  grief,  as  was  not  stran<>e.  Her  husband 
had  been  killed  on  a  train  belonging  to  the  Port- 
land, Saeo  and  Portsmouth  Railroad  Company,  un- 
der circumstances  of  the  most  atrocious  ne<>li<j:ence 
on  the  })art  of  the  comi)any.  Its  officers  agreed  to 
nav  her  tiitv  dollars  a  month  durin<>'  her  life  if  she 
would  not  sue  them.  They  carried  out  their  agreement 
lor  four  years,  and  then  having  discovered  that  there 
was  no  statute  in  Massachusetts  or  ^Nlaine  allowing  an 
action  aixainst  a  railroad  for  kiilini:'  its  passenircrs  or  its 
em[)l()V(H's,  thev  told  her  to  go  the  —  work-house,  for 
slie  had  seen  the  last  doUai  of  //k  ir  money.  When 
she  sued  them  on  their  promise,  they  rc[)lied  that  it 
was  without  consideration  and  void,  and  the  court  was 
ohlige(l  to  givi!  judgment  in  their  favor,  because,  for- 
bearance to  sue  is  a  good  consideration,  only  where 
there  is  a  Icfjal  cause  of  action, 

•A 


s 
3  3 


34 


LEADING    CASES    Si:\IPLIFIED. 


PROMISE   TO  DO  WHAT  PARTY  IS   BOUND   TO 
DO  INSUFFICIENT. 


REYXOLDS  v.  NUGEXT. 


[25  Iiul.  328.] 


There  is  nothing  to  show  thiit  Mr.  Reynolds,  of  In- 
diana, ever  distinguished  himself  in  the  lute  war, 
though  !it  one  time  liis  services  were  certainly  at  a  })re- 
mium.  The  township  of  Tohin  offered  him  a  hundred- 
dolhir  bounty  if  he  would  be  one  to  till  their  <|uota  of 
the  draft;  he  accepted,  signed  tlie  roll,  and  pocketed 
the  money.  But  on  his  way  with  Nugent,  the  recruit- 
ing officer,  to  be  mustered  in,  an  agent  from  Evans- 
ville  came  along,  offering  $350  l)ounty  for  recruits. 
♦' If  you  want  to  keep  me,"  said  Reynolds,  Avhen  he 
heard  this,  "you  have  got  to  come  up  to  I^vansville's 
offer."  "  "We  will  do  it,"  said  Nugent.  Reynolds 
was  satisfied,  and  went  to  the  war.  In  18(15  he  turns 
up  again  in  a  suit  for  the  $250,  which  Nugent  had  not 
yet  paid  him.  Hard  to  relate,  this  patriotic  veteran 
was  told  by  the  court  that  there  was  no  contract,  bo- 
cause  there  wns  no  consideration,  A  promise  to  do 
what  a  person  is  bound  to  do  by  law  is  not,  they  said, 
a  good  consideration  for  another  promise.  If  Rev- 
nolds  had  been  a  witness,  sul)[)(iMiaed  to  give  his  evi- 
dence in  a  lawsuit,  and  bad  refused  to  go  unless  he 
was  paid  extra, ^  or  if  he  had  been  a  sailor  who  had 
agreed  for  a  certain  sum  to  work  a  certain  voyage,  and 

'  Collins  V.  Godefroy,  1  Barn.  &  Adol.  iHi). 


T 


COXSIDKRATION. 


35 


■when  half  Avay  through,  he  had  refused  to  reef  a  sail 
until  the  captahi  promised  him  more  pay,^  iu  neither  of 
those  cases  could  he  have  brought  an  action,  for  he 
would  have  only  promised  to  do  what  it  was  already 
Ills  loiral  dutv  to  do.  And  that  was  iust  what  was  the 
matter  here.  Nugent  had  promised  him  the  $250  to  do 
what  he  was  already  bound  to  do  by  his  contract,  and 
this  was  not  a  legal  consideration  for  a  contract. 


C3 


CUIWBER  V.  AVAXE. 


[1  Stra.  42();  1  Smith  Ltl.  Cas.  -139.] 

AVane  owed  Cumber  some  $75,  and  wondered  how 
he  should  pay  it.  In  a  genial  moment  Cumber  rejoiced 
his  debtor's  heart  by  telling  him  that  if  he  paid  $21)  it 
would  do.  Wane  thanked  him,  sat  down  quickly  and 
wrote  out  his  promissory  note  for  that  amount.  But 
after  a  while  Cumber  repented  of  his  generosity,  and 
went  to  law  for  the  whole  amount.  Wane  pleaded 
that  the  plainlilf  had  agreed  to  accept  $25  in  full  satis- 
faction of  the  debt  of  $75,  and  that  he  had  paid  the  $25. 
This,  though  [)erfectly  true,  was  not  considered  a  satis- 
factory plea,  and  the  unfortunate  Wane  was  compelled 
to  pay  the  remaining  $50.  The  reason  was  that  as 
Cumber  wsis  entitled  to  the  $25  all  the  time,  there  was 
no  consideration  for  his  promise  to  relinquish  the  resi- 


>, 

^"*:;! 


I 


'  Stilk  y.  Myrick,  2  Camp.  317. 


3(1 


LEADING   CASES    SIMPLIFIED. 


(Inc.  Sonic  philosophoi-  luis  said  that  it  is  easy  to  be 
wise  after  the  tact.  So  thought  Wane,  as  he  rellectcd, 
that  if  he  had  only  said  to  ranil)er,  "  I'll  give  you  iny 
note  for  $2."),  and  a  pipefnl  of  tol)acco,"  or  "  I'll  pay 
vou  $2.')  on  account,  and  give  you  my  old  pocket-knife 
in  satisfaction  of  the  l)alance,"  there  would  have  been 
a  irood  contract  with  a  good  consideration. 


sa 


MORAL  OBLi:;ATn)y  JXSUFFIOIEXT. 


COOK   V.  HIIADLEI^. 


[7  Conn.  57;   IS  Am.  Dec.  7".t.] 


Cook  pero  was  poor  ;  Cookji/s  was  rich.  The  fathei- 
must  have  been  very  poor  indeed,  for  he  was  obliged 
to  «ot  his  necessarv'food  and  clothing  from  liradlevon 
credit.  The  son,  hearini^  that  ho  alreadv  owed  liradlcv 
$()0,  which  he  could  never  pay,  wrote  to  Bradley,  tell- 
ing him  that  he  considered  the  debt  one  that  he  (the 
son)  was  under  an  obligation  to  pay.  By  and  by 
Cook  Jils  died,  and  Bradley  endeavored  to  collect  the 
anionnt  from  his  estate.  But  he  found  this  a  very 
difficult  matter.  The  court  into  which  he  brou<rht  the 
letter  suggested  first  that  it  would  l)e  necessary  for 
him  to  show  some  consideration  for  the  promise. 
"  The  goods  I  supplied  the  old  man  with  were  neces- 


CONSIDKKATION. 


87 


REAU3IOXT  V.  REEVE. 


Ml' 


Siiries,  uiid  (ho  son  was  loj^ully  obligated  to  [rdy  tliom." 
"  Not  so,"  iiiiswcivcl  the  court ;  "a  son  is  not  bound 
by  law  to  pay  past  oxpoiiditurcs  of  lii.s  parents." 
"At  any  rate,"  replied  Bradley,  "  he  was  under  a 
moral  obligation  to  su[)port  his  father."  "  Right  you 
are,"  returned  the  court ;  "  but  that  will  not  help  you, 
lor  we  cannot  find  a  case  *in  the  ])ooks  in  which  it  has 
been  lu'ld  that  a  moral  o])ligati()n  is  a  sufficient  con- 
sideration for  an  express  promise.  In  fact  there  are  a 
iXood  many  to  the  contrary,  and  we  must  *x\\'g  iudij- 
mcnt  against  you,"  which  they  immediately  proceeded 
to  do. 


•'3       II 


[S  li.  IJ.  483.] 

Henry  Reeve  seduced  Caroline  Beaumont.  They 
lived  togiUher  for  about  tivo  years,  when  they  resolved 
to  separate.  In  consideration  of  the  cohabitation, 
Reeve  [)romised  to  [)ay  her  an  annuity  of  £(50  a  year. 
But  the  seducer  was  also  a  liar,  and  this  was  an 
action  for  arrears.  It  was  held,  however,  that  there 
was  no  legal  consideration  for  Reeve's  promise,  and 
the  womafi  must  do  without  the  annuity. 

The  student  must  clearly  understand  that  it  was  not 
because  the  contract  was  illef/al  that  it  was  held  to  be 
void,  —  there  was  no  illegality  about  it,  —  but  simply 
because;  there  was  not  what  the  law  counts  a  coiuidc ra- 
tion for  Mr.  R(!eve's  promise  ;  so  that  if  the  contract 


H  ■ 


88 


LEADINC    CASKS    SIMPLIFIED. 


hiid  been  under  sosil  (where  eonsiderations  iiro  unnoccs- 
Siirv)  it  would  luive  l)eeu  binding  on  him.  If,  liow- 
evvv,fu/urc  and  not  ^jr/.s-/  cohabitation  were  the  con- 
sideration, such  a  consideration  wouM  be  WegaU  nnd 
would  vitiate  oven  the  contract  under  seal. 


i 


PAST  CONSIDERATION. 


BULKLEV  V.    LANDOX. 

[2  Conn.  404.] 

Bulklcy,  Sonieryndike  &  Co,  l)rought  an  action 
n'l^ainst  the  representatives  of  the  firm  of  Smith,  Tav- 
lor  &  Co.,  of  New  York.  In  their  declaration  they 
allcfred  that  the  defendants,  in  consideration  that  the 
plaintills  wonhl  indorse  a  note  signed  by  Ji  third  pei- 
son,  promised  that  they,  the  d(>fendants,  would  hold 
themselves  liable  in  the  same  manner  as  though  they 
had  signed  it  with  their  names.  The  })romise,  which 
was  in  writing,  when  brought  into  court  hardly  l)ore 
out  their  statement,  for  it  was  in  these  words  :  — 

New  York,  August  27,  1814. 
Mesi^rs.  Bulldei/,  Somfryndike  (C  Co.  — 

Gextlemen  :  In  consideration  of  your  Jiav'uig  iu- 
dor.^ed  the  undermentioned  notes  drawn  by  David  Tay- 
lor in  your  favor,  we  hereby  hold  ourselves  accountal^lo 
to  you  for  them  iu  the  same  manner  as  though  said 
notes  were  drawn  l)y  us. 

SiMirii,  Taylou  &  Co. 


COXSI  DERATION. 


89 


ThoUirli  tlui  docisloii  was  lUiuld  by  tlio  court  on  a 
qiic'stion  ot'  i)lciuliug  —  which  by  tho  Wiiy  is  the 
mode  ill  wliich  most  of  tho  nilinixs  on  this  point  oc- 
curred—  ii  very  ini[;ortiiiit  princi[)lo  in  th(>  hiw  of  con- 
fsideration  for  contracts  was  announced,  thouixh  not  for 
the  first  time,  by  any  means.  This  princi[)le  is  that 
a  promise  founded  on  a  pa.sf  consideration  is  not 
binding;  and  tliough  the  piaintin's  liad  tried  to  make 
a  uood  case  bv  savinii;  "  irou/d  ind;>rs(!,"  the  writinfj 
itself,  wliicli  was  the  only  evick'nce  of  tlie  aUeged  eon- 
tract,  said  liaviiuj  indorsed,  —  a  mcn^  dilfereneo  in 
tenses,  to  bo  sure,  l)ut  enough  to  put  tlie  plaintifls  out 
of  court. 


LA3U»I^EIGH  V.   BUATHWAIT. 


[Hob   105,   1  Smith'H  Ld.  Cas.  222.J 

Thomas  Brathwait  sUnv  Patrick  Mahuine.  But 
kings  wei'e  kings  then,  and  the  murderer  was  for- 
tunate enough  to  have  a  friend  at  court.  To  this  friend, 
tlien,  he  resorted  in  his  need,  and  begged  him,  in  tho 
name  of  all  that  was  charitable,  to  go  to  the  king,  and 
intercede  for  his  life.  Touched  by  tho  appeal,  this 
friend,  —  Lanii)leigh  was  his  name,  —  consented  to  see 
what  could  l)c  done,  and  "  did  by  all  the  means  ho 
could  and  many  days'  labor  do  his  endeavor  to  ()])tain 
the  king's  pardon  for  tlu^  said  felony,  viz.,  in  riding 
and  journeving  at  his  own  charires  from  London  to 
Rovston,  wiien  the  king  was  there,  and  to   London 


I 


40 


LEADI\(f    CASKS    SIMI'MFIKD. 


flr!f 


luick,  ainl  so  to  and  iVoiii  Xcwiiiarkot  to  ()l»t;iiii  pardon 
for  (lie  (Icfoiulaiit  for  the  said  fidoiiy."  After  Lamp- 
Iciiih  had  taken  ail  the  joiiriieys,  iiiul  been  put  to  all 
this  lroiil)le,  liralhwait,  as  some  sh'^-ht  recognition  of 
liis  services,  i)roinise<l  to  ji:ivo  him  £li)!>.  But  t!io 
storm  l)U'\v  over;  Brathwait  cheated  the  hang-man; 
and  now  i)r<)|)osed  to  cheat  Lan)pK'';rh,  too.  In  answer 
to  Lanipieigh's  gentle  reminder  of  thi*  promise  to  give 
him  £100,  r)i-;ith\vait  reidied  vety  learnedly  that  no 
promise  is  hindinir  unless  it  is  founde  1  on  a  sutlieient 
consideration,  and  that  what  Lam[)leiuh  had  done  w;is 
a  mere  vohiiUari/  courffs//^  quite  insufHcient  to  support 
jipromise.  "  No,"'  said  Lam[)leigii,  with  much  somider 
learninu',  as  the  event  proved,  "  it  was  not  :i  meri*  vol- 
untary courtesy.  Yau  asked  me  to  do  it,  and  that 
iisking  saved  it  from  beini;  a  mere  voluntary  courtesy, 
and  made  it  a  sntHcient  consideration  to  l"ound  a  sul>- 
secjuent  promise  on."  The  conrt  thought  so,  too. 
Services  rendered  in  tlu^  [)ast ,  however  eminent,  are 
not  generally  a  sutlieient  consideration  to  snpi)ort  a 
promise.  But  a  i)ast  consideration  will  snppoi-t  a 
promise,  when  it  consists  of  services  rendcu'cd  by  the 
plaintiff  at  the  defendant's  reijuest.  As  this  was 
exactly  Lampleigh's  case,  he  got  his  £100. 

Yet  before  he  got  it,  he  had  to  overcome  another 
objection,  -which  the  urigratefid  Brathwait  interposed. 
"It  doth  not  ap[)ear,"  siid  l^i'athwait,  "  that  he  <lid 
anything  towards  the  obtaining  of  the  pardon  but  rid- 
ing n|)  an<I  down  and  nothing  when  became  there." 
But  the  court  said  that  did  not  matter,  fen-  labor, 
though  unsuccessful,  may  form  a  valuable  considera- 
tion. 


PAIITIKS. 


41 


III.  — l*AirJIKS. 


('OXTliACTS  OF  IXFAXTS  VOIDABLE  A XI)  VOW. 


FKTHOW   V.  WISEMAN. 

[10  liiil.  M.s;  KwL'll  on  Dis.  of  Inf.  22.]       , 

Siiimu'l  "Wisoinau  (his  nets  certainly  beru'd  liis  name) 
took  a  promissory  note,  payable  to  himself,  from 
,Iose[)h  Fetrow,  Avilh  Joseph's  sou  John  as  snrety. 
John  was  at  the  time  an  infant  —  i.e.,  not  3'et  twenty- 
one  years  of  a<xe.  This  was  his  first  foolish  i)roeee(l- 
ini:-.  Bi'ini^  nnable  to  make  the  amonnt  ont  of  the  old 
Ilia  'is  next  move  was  to  sno  the  youngster,  but 
when  John  api)eare(l  in  court  he  pleaded  the  "  bab}' 
a>'l."  'he  court  decided  in  the  infant's  favor,  and  the 
jilaintilf  went  home  a  juuch  wiser  man.  "The  contracts 
(•fan  infant,"  said  the  court,  "  areof  three  kinds  :  void, 
valid  and  voidable.  An  aorcement  which  he  makes, 
which  is  illegal  Dccauso  aijainst  a  statute  or  a  rule  of 
public  j)()licy.  or  a  contract  which  he  has  no  power  to 
make  at  all,  as  appointing  an  agent  or  attorney  in  fact, 
is  absolutc^ly  vi  d.,  A  contract  for  necessaries,  on  the 
other  hand,  is  as  binding  on  the  infant  as  if  he  were 
an  adult.     All  other  contracts  made  by  an  infant  are 


I 


42 


LEADINO    CASKS    SIMPLirKD. 


voi(l:il)li'  only,  :iii<l  when  he  eonies  of  age  l>c  may  ratify 
them  ami  become  li:il)le  on  them.  This  contract  of 
suretv.^hip  was  of  the  hitter  kind.  John  might  disatfirm 
or  ratilV  it  at  his  option,  and  as  he  had  taken  the 
former  course,  he  couhl  not  be  made  lial)le  npon  it." 


EXCEPT  FOR  XECESSARIES. 


PETERS  V.  FLE3IIXG. 

[d  Meo.  &  W.  \-l\  Ewoll  on  Dis.  of  luf.  ijC.] 

Mr.  Fh!mini»;  was  one  of  those  fast  collegians  whoso 
efforts  have  contributed  so  liberally  towards  the  set- 
tlement of  the  law  of  "  necessaries  "  for  infants. 
Durini;  his  career  at  the  Universitv  of  Cambridii:e,  and 
while  under  a<ro,  he  became  indebted  to  a  i(>wcller  in 
the  town  for  several  articles  of  oi-namen*:  ^'hich  were 
supplied  to  him  on  tick.  Fleming,  ^;e/'o  who  was  a 
wealthy  nunnbcr  of  Parlimcnt,  and  could  easily  hare 
paid  it  if  he  hid  liked,  wouldn't  look  at  the  liill  when 
it  was  sent  in  ;  if  he  had,  this  is  what  he  would  iiavo 
seen  :  — 

£       s.       d. 

A  fine  gold  ring 1        <S  0 

A  ring,  engraved  crest,  ct(^       .      .      .      .    0      LS  0 

A  short  gold  watch  chain 2        2         0 

A  pair  of  pins 0      l.S         0 

A  ring 1        <)         0 

A  ring 1        .^         0 

A  ring  repaired,  xww  stone       ....    0        3         H 

8        0         (5 


PARTIES. 


43 


So  tlie  cloiilcr  brought  an  action  against  tlie  young 
man  himself  Avhen  he  l)ecanie  of  age,  and  (the  judge 
luivinur  loft  it  to  the  iurv  to  say  whether  the  arti- 
ck'S  were  "necessaries"  or  not,  and  they  having 
Ibnnd  thtit  they  were,)  he  got  his  money.  But 
]\Ir.  Fleming  was  not  satisfied  ;  ho  desired  the  opinion 
of  the  Court  of  Exchequer  on  this  interesting  point. 
He  soon  got  it,  and  found  it  no  more  satisfactory  than 
tliat  of  the  jury,  for  the  court  agreed  in  every  respect 
with  the  verdict. 

"  The  true  rule,"  said  Paukk,  B.,  "  T  take  to  be  this, 
that  all  such  articles  as  nm  pnreJ//  ornamental  are  not 
necessary  and  are  to  be  rejected,  because  they  cannot  be 
rc(|uisito  for  an3'one  ;  and  for  such  matters,  therefore, 
an  infant  cannot  be  made  responsible.  But,  if  they 
are  not  strictly  of  this  discri[)tion,  then  the  question 
arises,  whether  thcv  were  boui^ht  for  the  necessary  use 
of  the  party  in  order  to  support  Jihnself  2Jroperl>/  in  the 
degree,  slate  and  station  of  life  in  which  he  movt'd;  if 
they  were,  for  such  articles  the  infant  may  be  respon- 
sil)lo." 


HUNT  V.  PEAKE. 


I 


[5  Cow.  475;   15  Am.  Dec.  475.] 


A    half  a  (UMitury  ago,  in    the  State   of  New  York, 
young  Alexander  IVake  told  pretty  Polly  Hunt  that 
ho  would  marry  her.     But  ho  didn't  do  it,  and  so  she 
sued  him  in  an  action  for  broach  of  promise  of  mar 
riage.    "  AVas  Alexander  twenty-one    years  old    when 


44 


LKADIXG    CASKS    Sl.MI'LIFIKI). 


he  said  lie  would   inarrv  you?"  asked  the  court,  and 
Pollv  Avas  ol)li;:('d  1o  admit  that  lie  was  not.      Tlien  the 
kind-hearted  judire,  with  a  savaire  name,  had  to  tell  her 
that  he  was  sorry  for  her,  but  Ihc  law  could   not  help 
her.     For  in  the  time?  when   Georiie  II.  was   kinij  of" 
England  ther(>  'was  a  youui::  lady  of  tifteen,  who  Avas 
told  l>v  the  owner  of  the  name  (w'.io  was  over  twentA'- 
one)    that    slu;    should   he    Mrs.   Ward    ClartMicieux.^ 
But  he  Avas  a  ^ay  deceiver,  and  married  some  one  else, 
and  slie  sent  him  a  noh^  hy  the  sherilF  that  she  con- 
sidei'cd  it  Avorth  £!,(»(  10  to  miss  havin<j:  such  a  prettA' 
name.     The  iurv  tliou'iht  it  was  Avorth  half  that  sinn, 
at  least,  and  then  ]\Ii'.  Claroncieux  retained   the   best 
lawvers  England  had  at  th:t  time,  Avho   made   a   fine 
argument  in  Westminster   Hall,  Avhicli  lasted   several 
days,  trying  to  convince  the  Judges  that  he  ought  not  to 
bo  obliged  to  i)ay  the  money.     But  it  Avas  no  use.     The 
judges  said  that  an  infant's  promise  Avas  not  binding, 
except  for  necessaries,  and  a  Avife,  notwithstanding  St, 
Paul,  Avas  not  a  "  necessity,*'     But  if  a  [lersoii  of  t'ull 
age  and  an  infant  agreed  to  marry  each  other,  tin;  for- 
mer   Avould    l)e    bound    while    the    latter    would    not. 
Therefore,  this  young  lady  of  tifteeu  could    bring  an 
action  a<:ai!ist  Mr,  Clarencieux,  who  had  reached  his 
majoi'ity. 

"  But,  therefore,"  concluded  Savage,  C.J,,  ♦'  l*olly 
could  not  sue  Alexander." 

'  Holt  0.  Chireucioux,  l'  Stra,  'Ml. 


as 


f^ 


Jkm 


TAliTlKS. 


45 


IIUSBAXJ)  J  YD   WIFE. 


MAMiY   V.   SCOTT. 

[1  Sid.  lo'.i;  'J  Siiiitirs  I>(1.  ('as.  1(17.] 

Sir  E(l\v:ir<l  Seott,  :i  rospoctable  baronet  of  the 
scvontoenth  eentiiiy,  was  not  fortunate  in  his  choice  of  a 
Avife.  The  hulv  was  fast,  and  the  uenth'nian  was  slow  ; 
and  they  failed  to  hit  it  olf  topfetlier.  Prol)ably, 
therefore,  it  was  to  the  no  small  relief  and  .satisfaction 
of  the  worthy  baronet  vdien  Dame  Scott,  as  th(;  re- 
porters call  her  ladyship,  determined  to  seek  fresh 
Avoods  ami  pastures  new,  and  went  riuht  away.  The 
irood  easy  man  had  not  enjoyed  such  iieacc  since  the 
days  of  his  bachelorhood.  Twelve  years  passed  away, 
and  one  day,  at  the  stately  home  of  Kniiland  inhabited 
by  Sir  Edward  Scott,  then;  turned  u[)  an  exceediuiily 
seedy  h)okinL>;  female,  who  announced  herself  as  Lady 
Scott, and  the  mistress  of  all  slu;  surve\»  I  Her  riijfhts, 
howeyer,  were  very  soon  dis[)Uti'd.  Tlu'  baronet  was 
a  sensible  pcM'son,  and  his  pam[)er(Ml  menials  soon  sent 
th(!  old  woman  about  her  business. 

This  action  was  brought  by  a  merchant  who,  although 
Sir  Edward  had  ex[)r(>ssly  told  him  not  to  do  so,  had 
supplii'd  Tiady  Scott  with  silks  and  satins  dui'inu'  the 
time  she  was  livinir  away  from  her  husband.  The 
reader  will  scarcely  be  sur[)rised  to  hear  that  Mr. 
Manby  did  not  obtain  a  satisfactoi'y  settlement  of  his 
little  bill,  and  Mduhij  v.  Scott  is  the  chief  authority 
for  the  prineii)le  that  the  wife's  contract  does  not  bind 
the  husband  unless  she  act  by  his  authority. 


CO 


•l 


4(5  li:ai)I.\(;  casks  {^implifikd. 


3IOXT A<;r   V.  1$ENK1>TCT. 

[;{  Burn,  .t  Cri'ss.  (.;il  ;  i'  Smith's  Ld.  Ciis.  427.] 

Mr.  Beiiodicl,  (tlu'  iiaiiu",  as  stiKloiits  of  Shakespeare 
will  have  siinnised,  is  a  laiun^oiie)  was  a  hanl-worUiiig 
lawyer  who  lived  in  a  furnished  house  which  he  rented, 
and  which  wa.s  ])y  no  means  elc<2;ant  in  its  a[)i)()inL- 
incnts.  Indeed,  he  did  not  keep  a  man-servant,  and 
these  two  facts  were  of  importani'(!  when  he  came  to  he 
sued  1)}'  Mr.  Montaixn,  jeweller,  who  had  sold  Mrs. 
Benedict  several  hundrt'(l  dollars  worth  of  expensive 
jewelry  without  his  knov/ledge.  In  an  action  by  the 
jeweller  auainst  tlu;  husband  it  was  unanimously  iield 
that  the  goods  were  not  necessaries,  and  he  could  not  be 
eom[)clled  to  pay  lor  them.  M(»)if(nju  v.  liinwdlct 
lays  down  thi;  law  of  hushaml  and  wife  this  far:  If  a 
man  without  any  just  cause,  turns  away  his  wife,  he 
is  bound  by  anv  contract  she  maki's  for  necessaries 
suitable  to  Ihm*  })osition  and  estate,  and  it  is  tlu;  same 
if  they  live  together  and  he  docs  not  snp[)ly  her  with 
necessaries.  Whi'u  he  himself  provides  ln'r  with  ne- 
cessaries, he  is  not  liabhi  on  her  contracts  unh'ss  he 
assents  to  tluMu,  but  his  assent  may  be  either  express 
or  implied.  But  the  goods  must  be  necessaries,  and 
in  this  case  they  were  dearly  not,  for  Mrs.  Benedict 
would  have  been  in  a  better  business  if  she  had  laid  out 
the  money  for  new  furniture  f(u-  tlu;  house  instead  of 
useless  ornaments  which  would  so  ill  corrosiK)nd  with 
the  old. 


P\RTILS. 


47 


SEATOX  V.   BENEDICT. 


[5  Bing.  28;  2  Smith's  LU.  Gas.  432.] 

^Ir.  and  Mrs.  Bcnodict  reappoiir  on  the  boards. 
After  the  little  affair  of  the  jewelry,  tliej  left  the  city 
and  Avent  to  live  in  the  couiitr3\  But  even  in  the  se- 
clusion of  the  peaceful  hamlet  where  they  settled  Mrs. 
Benedict  pursued  her  extravagant  wavs.  She  became 
indebted  to  a  local  store-keeper  for  gloves,  ribbons, 
muslins,  laces,  and  silk  stockings,  and  tinally  the  mer- 
chant sued  the  husl)and.  The  goods  supplied  were 
un(|uestional)ly  necessaries,  but  then  ]\Ir.  Benedict  had 
always  duly  furnished  his  wife  with  necessary  apparel 
and  knew  nothing  of  her  clandestine  dealiuiis  with 
Seaton  ;  and  on  this  ground  the  plaintiff  was  disap- 
pointed in  his  expectations  of  getting  i)aid.  "  It  may 
bo  hard."  said  Best,C.  .!.,  "  on  a  fashionable  milliner 
that  she  is  precluded  from  supplying  a  lady  witliont 
previous  in(|uiry  into  her  authority.  The  court,  how- 
ever, camiot  enter  into  these  little  delicacies,  Init  must 
lav  down  a  law  that  shall  protect  the  husband  from 
the  extravaixance  of  his  wife." 


:?3 


1)EIJENHA>I  V.  3IELLOX. 


[6  App.  ('as.  24.] 

A  prudent  man  was  Mr.  Mellon.      He  gave   his  wife 
an  allowance  of  $2(50  a  year  for  dresses  and  pin-money, 


48 


I,KAIH.\(f    CASKS    SIMl'Ml-IKI). 


and  iilso  iiiioniuMi  her  tli.it  he  was  not  ii'oini;'  to  pay 
for  iiiiv  (Irv  ii'oods  or  inilliiun y  she  iniuht  choose  to 
])U\  on  credit  — slie  must  _ii"i't  aloiii;  on  what  she  had. 
In  spile  of  this  distinct  i)rohihilion,  Mrs.  MeMou 
ravorc(l  a  certain  store-keeper,  omi  Dehenhani,  with 
snhstaiiti.d  orders  lor  dresses,  etc.,  and  ho,  by  and  by, 
i'avore(l  Mr.  Mi'Uon  witli  a  substantial  Cliristiuas  bill. 
This  Ml-.  M(dlon  absolutely  declined  to  have  an^'thinij^ 
to  do  with,  and  litipition  ensued.  The'  store-kee[)er 
had  not  known  that  Mr.  Mellon  had  expresslv  forl)id(len 
his  wife  to  incur  surre[)titious  del)ts,  and  the  u^oods  ho 
had  supi)lied  were  what  the  law  calls  "  necessaries,"  so 
he  felt  eontident  of  success.  The  judges,  howovei',  di'- 
cidcda<rain<t  hini,  and  thus  "carried  to  its  logical  results 
the  princi[)le  that  the  wife's  authority  to  bind  lu'r  hus- 
bjind  is  !i  nieri'  (piestion  of  agency."  '  Then  the  stori'- 
kecper  (aich'd  by  his  brother  dry-goods  dealers,  and 
shooniakors,  and  jewellers,  who  were  much  ahinnod  at 
this  anuonncenient  ot  the  law)  went  to  tlu;  great  ex- 
pense of  employing  very  eminent  counsel,  and  taking 
the  case  to  till!  House  of  Lords,  lint  that  tribunal, 
the  higliesl  in  Kngland,  was  of  ihc  s;imt'  (»i)iiiiou  as 
the  judges  below.  "The  fact,"  said  Lord  IIlack- 
iJiii-N,  "of  a  man  living  with  his  wife  always  allbrds 
evidence  that  ho  intrusts  her  with  .such  authorities  as 
are  ordinarily  given  to  a  wifi>.  In  the  ordinary  ease 
of  tiie  manag(Mnent  of  a  household,  the  wW'o  is  tin; 
manager,  ami,  with  such  tradesmen  as  a  butcher  or  a 
baker,  she  would  have  authoritv  to  nledirc!  her  bus- 
band's  credit  ;  but  even  then  I  do  not  think  the  pre- 
sum[)ti()n  would  arise,  if  the    husband  gave    her  the 


'  Jolly  r.  IJc't's,  1,-)  ('.  IJ.  (\.  s.)  C.L'S. 


PAUTIF.S. 


49 


means  to  procui'o  the  articles  without  erodit.      Tii  llio 
pi'eseiit  c'as(^,   however,  yoiii*  h)rdships   have  to  ih'ter- 


r.iiiie 


whether  the  wile  had  a  mandate  to  order  eh)the: 


I  am  of  opinion  that  there  is  noth- 


which  it  would  he  pro[)er  for  hov  in  her  stiition  of  life 
lo  have,  although  the  hn.sl)and  had  forbidden  her  to 
lijediio  his  credit,  and  had  iriven  her  monev  to  hnv 
clothes  *  * 
iiig  to  authorize  our  holdinii"  that  the  wife  had  author- 
ity to  pledire  her  husband's  ci'edit.  I  au"ree  that  if  lie 
knew  that  she  iiad  ijfot  credit,  and  had  allowed  the 
tradesmen  to  suppose*  that  he  sanctioned  the  transac- 
tions with  them,  it  miirht  well  be  aiireed  that  there 
was  such  evidence  of  authority,  that  he  could  not 
i-evoke  it  without  uiviniT  notice  of  the  revocation  to 
all  who  had  actc'd  u[)on  tlu;  faith  of  his  sanction.  The 
iicnci-al  rule  would  be  that  which  I  have  stated  ;  but 
where  an   au'cnt    is  clothed    with  an  authoritv  which   is 


afterwards   revoked,   those   who   have  dealt  wi 


th   h 


mi 


have  a  riuht  to  say,  uidess  the  revocation  has  been 
made  known  to  them,  that  the  princii)al  is  i)recluded 
from  denyinixthe  continuance  of  that  authority,  in  the 
continuance  of  which  he  has  indnce(l  them,  as  reason- 
able; persons,  to  believe.  There  have  been  nniny  cases 
where  a  husband  has  sanctioned  his  credit  being 
thus  pledgeil  by  his  wife  ;  but  there  is  no  such  ease 
licre.  I  cannot  agi'ee  that  the  cases  have  (>stablished 
that  the  fact  of  a  wife;  living  with  her  husband  alone 
entitles  tradesmen  to  [)resum(!  that  the  iiusband  has 
giveji  an  authority  which  In;  is  precluded  tVom  after- 
wards denying.  I  think  that  in  such  a  case  it  is  open 
to  the  husband  to  i)ro>'e,  if  he  can,  that  such  an  au- 
thority does  not,  in  fact,  exist,  that  being  a  (piestion 


c5 


for  tl 


le  jury 


This  is  not  the  case  of  the  withdrawal  of 


50 


LKADINO   CASKS    SIMl'LIFIED, 


nil  authorily  whic-h  lius  lun-n  oiico  givcMi  ;  but  the  ques- 
tion is,  wlu'thcM-  the  appellants,  who  had  never  before 
dealt  with  either  the  wife  or  the  husband,  were  entitled 
t')  assume  that  the  authority  was  iiui)lied  from  the 
mere  fact  of  cohabitation,  and  I  do  not  think  that  the 
law  srave  them  any  riirht  to  do  so." 


CONTRACTS  OF  LUNATICS. 


3IITCHELT^  V.  KING3IAN. 

[5  Pick.  t;U  ;   Ewell  on  Dis.  of   Inf.  5L'2.] 

Kingman  Avas  sued  on  a  promissory  note.  *'  I  ad« 
mit  he  made  the  note/'  said  his  counsel,  when  the  ease 
came  to  trial,  "  but  if  your  honor  will  allow,  I  will 
show  that  at  the  time  he  sionod  it,  and  ever  since,  he 
has  been  an  idiot,  perfectly  incajjable  of  understanding 
what  he  was  doing,  and  1  think  that,  under  these  cir- 
cumstances, he  ought  not  to  be  bound."  Then  up 
rose  Mr.  Mitchell's  lawver.  "It  seems  to  me,"  he 
replied,  in  a  very  confident  tone,  "  that  I  have  read 
in  Blackstonc  that  it  is  a  maxim  of  the  conunon  hiw 
that  no  man  of  full  age  can  be  allowed  by  his  own 
i)lea  to  stultifv  himself,  and  thereby  avoid  liis  own 
deed  or  contract  ;  and,  if  I  am  not  mistaken,  Lord 
Coke  makes  a  remark  of  a  similar  character."     "  You 


PAUTIES. 


51 


arc  riglit,"  said  tlio  Jiidgo,  "  wc  cumiot  listen  to  such 
ji  plea.  Judirnient  for  the  plaiiitill'."  But  on  ii[)pejil 
the  Supreme  Court  of  Massachusetts  reversed  the 
ease,  sayiii<j^  that,  thouLjh  true  it  was  that  Blaekstono 
and  Coke  had  so  written,  yet  a  more  enlightened 
j)oliey  had  established  a  better  rule,  and  the  law  of 
England  now  was,  and  of  America  had  always  been, 
that  a  lunatic  or  insane  person  might  avoid  his  con- 
tracts 1)y  showing  that  he  was  insane  at  the  time  they 
were  made. 


^5 


BAXTER  V.  PORTS3IOUTH. 

[7  Dow.  &  lly.  (iU;  2  Car.  &  P.  178;  5  lUrn.  &  Cress.  170;  Ewell 

on  Dis.  of  Inf.  O.'Ji.'.] 

On  various  occasions  between  1818  and  1823  the 
Earl  of  Portsmouth  hired  carriages  and  horses  from 
the  plainlilf,  Mr.  lia.xter,  or  Bagster  (there  seems  to  he 
some  dilferenco  as  to  what  his  real  name  was,  but  this 
is  unimportant),  and  thereby  incurred  the  bill  for  which 
this  action  was  brought.  It  was  proved  that  the  plain- 
tiff had  no  reason  to  sujjpose  the  Earl  to  be  of  unsound 
mind  ;  and  that  the  carriages,  etc.,  were  constantly 
used  by  him,  and  were  suitable  to  his  rank  and  station. 
This  being  so,  the  plaintiff's  claim  was  not  defeated 
by  its  having  been  found,  in  1823,  by  a  commission  that 
the  Earl  "then  was,  and  from  the  1st  of  January, 
1801>,  coiitinnally  had  been  of  unsound  mind,  not  suf- 
ficient for  the  government  of  himself."  Imposition  or 
fraud,    as  a  rule,   said    the   court,  were   ijrounds    for 


Mi 


52 


r.KADlNfi    (.\Si;S    SIMI'MIII'.I). 


v:u';irm.!^' .'ill  coiitrMi-ts,  niiil  willi  icspcM-l  to  a  person  of 
unsound  niiii<l.  if  it  can  1»<'  proved  that  lie  has  Ix-cn 
(lefrande.l,  or  an  un(hie  advaiitaii-e  (aken  of  Ills  im- 
heeilitv.  a  court  will  not  enforce  his  eontraets.  Hut 
where  there  is  no  inipo>ition  praetise(],  and  the  u'oods 
snp|)lied  are  siiitaltle  to  his  {■oudilion  and  decree, 
then  the  mere  fact  that  he  is  of  unsound  mind  and  in- 
c'apal)le  of  makinjj:  his  own  contracts  will  not  deprive  a 
pei'sou  who  has  uiven  him  credit  for  such  goods  from 
suinu"  in  a  court  of  law  for  their  value. 


KI{<)M   V.    S('II<)()\>IAKElf. 


|;l  Harli.  (;17;   Kwcll  on  \)\>.  nf  Inf.  (i;;s.J 

A  crazy  fellow  in  Rochester,  \ew  Vork,  who  was  all 
the  luoro  dangerous  foi- the  reason  that  he  was  a  jus- 
tice of  the  i)eaee,  was  [)()s<c^scd  with  tlie  idea  that  Mr. 
Krom  had  l)een  committing  wholesale  forgei'y,aud  so, 
one  line  morning,  he  thought  it  his  duty  to  issm;  a 
■warrant  lor  Krom's  arrest ,  wherefore  the  latter  was 
obliged  to  spend  a  whole  day  in  the  custody  of  a  con- 
stable. When  he  got  out  it  was  not  long  before  there 
was  an  uetion  for  false;  iinpiisounicnt  i)endiug  in  the 
courts  against  ^Nlr.  Justice  of  the  Peae(>,  whose  friends 
seeing  the  (ix  lie  was  in,  inter[  osci]  the  defenst;  that  ho 
was  Insane  at  the  time  he  issii.d  a  warrant.      I'ut   the 


'  This    case  properly  he'loiiixs   fiirtlicr  on    in  tlic    book,  l)ut   is 
placed  here  for  couveuieuue. 


PARTI KS. 


53 


"  iiisiuiity  thxlgo  "  liiul  no  show  i;i  this  ciisn.  A  limti- 
tic,  tho  court  sjiid,  cannot  he  ixniishcd  tor  crime,  hut, 
;ill  th(!  same,  lie  may  he  sue(l  i'oi-  an  injury  donii  to 
another.  An  idiot  or  otiier  insane  pei'son  is  not  a  iVeo 
:iirent,  cai)al)le  of  inteUii^enl  voluntary  action,  and, 
therefore,  he  cannot  have  any  ijfuiJty  intent,  wliich  is 
the  Teiy  cssenc(!  of  ci'ime.  But  a  civil  action  to  re- 
cover damaires  tor  an  injury  m;iy  he  maintained  M^iainst 
him,  hecau^e  in  such  a  cas(!  the  intent  with  which  the 
act  is  done  is  not  material.  It  must  be  home  in  mind, 
however,  that  the  measure  of  damaires  will  generally 
l)e  less  in  the  case  of  a  lunatic  than  when;  a  sane  man 
is  sueil  for  an  injury,  for  th(5  amount  of  damaires  is 
<renerallv  increased  hy  a  malicious  motive  in  eausin<r 
the  injury. 


;"5 


COXTUACTS  OF  COItPORATlONS. 


1$AXK   OF   (JOLirMIJIA   V.    PATTERSON. 


17  Craucli,  '_".''.'.] 


'I'luM-ei  was  an  old  doi'trin(>,  that  lingered  in  the  courts 
for  many  years,  to  the  elfcct  that  a  cor[)oration  could 
make  no  contract  excei)t  hy  its  corporate  seal,  the 
reason  iiiven  heing,  as  ex[)ressed  hy  an  old-time  judire 
that  they  were?  "  invisible,  immortal,  and  had  no 
souls,"  and,  therefore,  were  iucai)able  of   manifesting 


I 


54 


LKADIMi    CASKS    SIMI'LIKIKI). 


their  intention  by  iHiy  pciNonal  (if  or.il  discourse. 
Corpor.'itioiis  h:i(l  ii  urlorions  time  of  it  on  tlu^  strength 
ofthi^ :  thev  in;i<le  all  sorts  of  eontraets  with  all  sorts 
of  i)eis()ns,  hy  the  word  of  mouth  or  the  simple  siixna- 
turo  of  one  of  their  otTictMs  or  air<'nts  ;  they  looked  on 
and  saw'  the  work  l)eiiii!:  done  for  them,  or  the  things 
delivered,  and  then  when  pay-day  eame  aronnil,  they 
absolutely  deelined  to  l'oi-k  over,  and  sueeessfully  sh(d- 
tored  themsi-lves  held  1  1  t!ie  pitiful  (h-fenro  that  the 
contracts  of  corporations  are  not  l)indi.ig  unless  mado 
under  their  eorporalo  seal.  It  is  tliis  sort  of  tiling 
which  has  earned  them  the  title  of  "bloated,"  and 
which  has  at  the  same  time  rendered  tluMii  rath(>r  un- 
popular whenever  they  have  been  forced  to  come  witii 
their  disputes  before  a  jury.  Hut  it  is  a  long  lane 
which  has  no  turning,  and  tli(5  wjiole  fabric  of  c;)r[)or- 
fite  exemption  and  privilege  received  a  terril)lo  shcxdc 
in  the  celebrated  case  which  stands  at  the  head  of  this 
})aragraph. 

The  facts  of  the  case  were  very  simple.  Mr.  Pat- 
terson was  a  l)uilder  ;  the;  Hank  of  Columbia  wanted  a 
new  buildiui!;.  A  committee  of  the  stockholders  and 
Patterson  made  a  contract,  and  he  went  on  and  put  u[) 
the  building.  But  when  he  asked  for  payment  for  his 
Avork,  the  Bank  (thougii  it  had  received  the  consider- 
ation), made  a  grand  ellbrt  to  keep  the  building,  and 
at  the  same  time  not  pay  for  it,  by  saying  :  "We  never 
put  our  seal  to  the  contract,  and,  therefore,  you  cannot 
hold  us."  But  tliis  sort  of  morals  did  not  suit  the 
Su[)reme  Court  of  the  United  States,  which  court, 
though  admitting  that  such  was  the  law  ancientlv,  pro- 
ceeded ])y  the  hand  of  Mr.  Justice  Stouy  to  demolishit 
for  all   time.     "The   technical    doctrine"    said  that 


jm 


mm 


PAirriKS. 


65 


Icnnu'd  jiul^c,  "  tlial  ii  corporation  could  not  contract 
except  under  its  seal,  or  in  other  words,  could  not 
inaivc  a  promise,  must  have  been  product iv(!  of  <^reat 
niiscliiels.  Indeed,  as  soon  as  tiuj  doclrinj;  was  estab- 
lisl'.ed  that  its  rcL^darly  ap[)ointe(l  a>xeiit  could  contract 
Ml  their  minu!  without  seal,  it  was  impossihle  to  su[)- 
port  it ;  lor  otheiwise,  the  party  who  truste<l  such  con- 
ti-act  would  1)0  without  remedy  a^iainst  the  corporation. 
Accordinuh',  it  would  seem  to  l>e  a  sound  rido  of  law, 
that  wherever  a  corporation  is  actini^  within  the  scope 
of  th(^  le;jfitimate  purposes  of  its  institution,  all  j)arol 
contracts  made  by  its  authorized  aijonts  arc  express 
promises  of  tln^  corporation  ;  and  all  duties  im[)osed 
on  them  by  law,  and  all  benetits  conferred  at  their 
re(pi(\st,  raise  implied  promises  for  the  euforccmciit  of 


fj 


i    i 


w 


hid 


I  an  action  mav  well  lie 


f*s 


5(j 


LEADING    fA8i:S  8i     PLIFIKD. 


IV.  —  TiiK  Statute  of  Frauds. 


[The  iiidcpciKleiiL  layman  who  I'luK'avors  to  iiuiki'  Lis  (•onlnicts 
without  llrst  con:-iiltiii';-  liis  lawyer,  will  fr;ii'.U'iitly  rc;;rc't  th:it  Iig 
hail  not  been  tlrst  instructed  in  tiu;  provisions  of  tl-o'  Statute  of 
Frauds,  l/fifx  i>^'>  in  tlio  reii;u  of  that  incrry  ruler,  Charles  II.,  a 
few  of  t!ie  fatlu-rsof  the  law  in  tlie  Eniilisli  Parliament  — Lord  Halo 
amoiiij;  tlieiii  —  passed  a  statute  wiiich  was  entitled  "An  Act  for  pre- 
vention of  Frauds  and  rerjurycs."  Most  laws  endeavor  to  put  a 
stop  to  the  practices  wiiicli  tin y  are  designed  to  preveni,  by  assess- 
Inj;  penalties  and  punisluncnts  ui>onlln;  refractory  individuals,  wlio 
forLTet  or  refuse  to  keep  tlieni.  Not  so  this  law,  v.Iiicli  had  for  its 
ul)ject  tlie  rcniovin-j;  of  some  of  tlie  temptations  to  fraud  and  per- 
jury, by  prevent inii  men,  in  the  case  of  a  larute  number  of  agree- 
nienls,  from  swearin'j;  tliai  they  had  or  had  not  beea  entered  into, 
unless  tlie'-e  was  so;:!f  writinij:  on  tlie  subject.  Where  one;  man 
said  tiial  anotlier  liad  i«romis(d  to  do  a  certain  thin;,',  by  word  of 
mouth,  and  tlie  oilier  denied  il,  it  is  obvious  liiat  even  if  o:ie  of 
them  was  not  lyinu;,  such  testimony  was  very  tnicertain  and  iinsati'  - 
factory  for  a  jv.tlire  to  have  to  decide  upon,  an<l  so  that  this  kind  of 
sweariu!;;  should  be  discouraired,  tliis  learned  I'arli-inient  i)assed  the 
celebrate,!  Statute  of  Frauds  — an  enactment  which  is  in  force  in 
Gre.it  !»ritain  to  this  day,  and  whose  provisions  have  l)een  copied  into 
the  statute  l)ooks  of  almost  all,  if  not  all,  tlic  Spates  of  the  Union. 
The  original  act  has  sixteen  sections,  th.e  fonrlii  and  sixteenth 
beiuii"  by  far  the  ic.ost  important.  They  read  thus  (the  preamble 
in  the  quaiiii  ICuirlishof  the  time)  ;  "  F(n'i)revcntion  of  many  fraudu- 
lent Practices  which  are  commonly  endeavored  to  be  upheld  by 
Perjury  and  Subornation  of  Poriary  U 'c  it  enacted  that  noe 
Action  shall  he  1)roui;lit  " :  — 

Sr.cT.  t.  On   any  promise  l)y  imi  executor  or   adminis.rator  to 
ansv.cr  dama'tes  out  of  his  own  escate. 

On  any  promise  to  answer  for  the  debt,  default,  or  miscarriaiie  of 
another  person. 

On  any  aitreement  made  in  consideration  of  marriage. 


TIIK    STATUTK    OF    FIJAUDS. 


a? 


(!ii  Miiy  contracf  orsalo  of  huids,  tenements,  or  lieredUaincnts,  or 
any  iiitiTcst  ill  or  coiicerniiii;  them. 

(»ij  any  iiiireement  not  to  be  performed  within  a  year  from  its 
iiiMkiiii/ 

Unless  the  a^n-ement  or  some  note  or  memorandum  thereof  sliall 
!)(•  in  writin;;,  sijined  l)y  the  person  to  be  eliarxed  or  Ills  uijent. 

Section  Hi  enacts  that  no  contract  for  tiie  sale  of  any  j^oods, 
wares,  or  merchandise  for  the  price  of  £10  or  more,  shall  be  ;;ood 
iiidcss  the  bnyer:  — 

(1.)  Accepts  ))art  of  the  goods  so  sold,  and  actually  receives  the 
same ; 

(2.;  Or  ;iives  somethim^  in  earnest  to  bind  the  bargain,  or  in 
l)art  payment ;  or 

(;V)  Some  note  or  memorandnm  in  writiii'^,  of  the  barfjain,  is 
ma<lo  and  sic -ed  by  the  party  to  be  charijed,  or  his  a'j;i'nt. 

As  was  to  bti  ex|)e(;ted,  the  courts  were  soon  ealhil  n|)on  tointer- 
prc  the  different  provisions  of  this  statute.  In  fact  liiey  have 
]<('pt  at  it  for  two  hun<lred  years,  and  are  by  no  me:ins  through  yet. 
Indeed,  one  may  say  that  they  have  just  jiot  a  good  start. 

Tiie  most  imjiortant  of  tlie  "leadinu:  cases"  on  these  important 
statutory  provisions,  are  the  following  ones:  — 1 


PUOMTSE  TO   ANSWER    FOR   'DEll'I.   DEFAULT, 
OR   MISrARRfAOF"   OF  ANOTHER. 


B1L1K3IYR    V.    DAIlXET^r.. 

[Sulk.  L'7;   1  Smith's  Ld.  {'as.  ;571.] 

Liuhtlimror  WMiitcd  somebody  to  lend  liiiii  ti  horso  ; 
but  wlio  would  lend  Liirhi tiiijicr  ;i  lioi'se?  IIo  w:is  so 
suspicious  u  c'imi'actef  that  cvofybo'dy  lie  ii[)pliod  to 
rcinarkcd  that  lu;  was  very  sorry,  but  that  Just  iit  present 
ho  was  not  in  tlu;  livery  business.  At  last  \\o  ofot  the. 
wesdv  side!  of  one  Darnell,  who  had  no  horses  himseH",  but 
knew  some  persons  who  h;id.     To  one  of  theso  persons. 


58 


LEA1)IN(J    CASKS    MMPI.I  FIKD. 


t 


iiiinh'<l  liii-kmyr,  I);inicll  wmt,  aiul,  with  niiiiiy  oxpros- 
sions  of  coulidiMicc,  undertook  to  1)0  ros[)on.sil)I<>  for 
LiiilitliiiiTcr's  biTiiriiiir  saffly  hark  any  horse  tlmt  Birk- 
tiivr  inii^ht  nitni>t  him  witii.  On  the  faifli  of  (his 
uiKh'rtakiiiL^  —  a  V('rl)al  one  of  coiirso — Birkmyr  lot 
Liuhtliiiu'or  havi^  out'  of  tlio  best  horses  in  his  stable, 
and  that  uentlenian  rode  away;  and,  as  there  were 
neither  raih-oads  nor  teh'irra])hs  nor  poJi'o  in  1700, 
ncilhci'  '■<!  nor  the  horse  was  ever  heard  '■"  aij^ain. 

Tliis  heinL''  the  state  of  the  ixanic  '."  rkniyr  played 
the  only  card  that  was  left  him  :  he  sn<'(l  Darnell. 
This  eard,  iiowtjver,  did  not  [)rove  the  trnm[)  he  antici- 
pated. He  iound  to  his  eost  that  he  onght.  to  have 
taken  Darnell's  promise  in  writini";.  The  Statute  of 
Frauds,  as  we  have  seen,  says  that  a  '•  promise  to 
juiswer  for  the  debt,  default,  or  misearriuije  ol'  another 
person  "  must  be  In  irrifiiiff.  Darnell  had  [)romised 
that  if  LiuhtliuL'er  did  not  bring  back  the  horse, 
fVnkmyr  niiuhl  look  to  him.  This  was  preeis(dy  the 
kind  of  promises  that  the  statute  referre<l  to  —  a  proniis(> 
\vlier(!  some  one  else  is  primarilv  liable.  If  John 
Smith  takes  his  friend  .lonivs  to  his  tailor,  and  says, 
"Make  this  iientlemun  a  pair  of  trousers,  <ni(l  if  he 
(Jncsii't  pin/  i/nn,  I  iri///'  Joni's  remains  primai-iiy 
liable,  and  Smith  cannot  l)e  sued  ;is  surety  uidess  his 
l)romise  was  juit  in  writing.  But  if  Smith  should  say 
lothe  tailor,  "  .Make  this  gentleman  a  pai.-of  ti'ousors, 
nvd  f  in'/i  j)fti/  >/oii/'  no  writing  would  l)e  required  to 
in:die  Smith  liable. 


'"^yWfwn??ieaPW?Bwrrr«;v«Tr — ^-^--^  ■ 


TIIK    STATUTK    OF    FK'AUDS. 


59 


PROMISE  '^IX  COXSIDERATIOX  OF  MARRIAGE:' 


SHORT    V.    STOTTS. 


[:)8  lud.,  L'!).] 


Siimiu'l  Slut.  I  i)r()inis('(l  to  iii.-utv  Muuiriti  Stott^;, 
and  wlu'ii  I.  \  out  back  on  his  word,  MaLrsiio  sued 
liiin.  '  Bi-oiii>iit  into  court,  Mr.  Samuel,  knowini'  that 
his  pre  'lise-;  had  always  been  by  word  of  mouth,  set 
Ml)  the  J.jt(  nco  that   Mao'iri*^  eould    not    hold    him  on 

1  C7v_- 

his  aurccmont  until  she  had  i)r(  lured  some  writini; 
of  his  to  that  cfFect,  relviiiuf  on  the  Statute  of  Frauds 
to  help  him  out  of  the  scrajje.  Rut  here  he  di<l  not 
succeed,  as  tiie  court  ruled  that  the  statute  applied 
onlv  to  ai::reements  "  in  consideration  of  marriaue," 
and  not  to  Uirreements  to  marrv. 


''IXTEREST  IX  OR  COXCERXIXG  LAXDS. 


CROSIJY    V.    VV^VnSWORTH. 

[t;  East,  no:;.] 

Farmer  '^Vadsworth,  of  Claypojo,  In  Lincolnshire, 
had  a  tield  of  liUely-looking'  gra.s  ,  which  Crosby,  with 
an  eye  to  hay,  desired  to  purchuse.     Meeting  casually 


i 


CO 


I,K  \!>I\<!    CASKS    snil'I.IlMKI). 


one  il.iv  ill  .Iiiiic,  it  \v;is  jiuTood  hi'tweeii  tlieiii  that 
Croshv  should  have  tlu;  <rra->s  for  twenty  .irniiH^-^,  only 
he  was  to  iiavc  the  t roiil)l(' of  mowing  «ii<l  making  it 
iiilo  IiMV.  On  this  undrrstanding  thtiy  so[)arat('d. 
l>iit,  two  or  tln-rc  weeks  al'ierwai'ds,  ^Vadswortli  again 
happened  to  nieet('rosl)y,  and  remarked  plea.saiitly  : 
"P.vlheway,  I"ve  thcided  not  to  let  yon  have  that 
•'rass  ot  mine;  I  don't  tliink  \'onr  liiiiire  is  u'ood 
enouuh:"'  and  the  same  day  h(!  sohl  it  to  a  Mr. 
Carver  lor  twenty-live  i^uineas,  thns  cK'aring  a  iive- 
ponnd  note  hy  iiis  diph)maey.  .Mr.  Crosby  sned 
Wadsworth  lor  his  brc'aeh  of  contiaet,  bnl,  unfortu- 
nately, took  nothing  by  that,  as  it  was  held  that  tlu^ 
eontraet  was  oiu'  whieli  had  to  do  willi  the  land,  and 
thendort!  should  have  been  in  writing,  as  re(juired 
ly  the  fourth  seetion  of  the  Statute  of  Frauds.  "  I 
think,"  said  Lord  KLLKXHOUoiiiii,  "the  agreement 
stated,  conferring,  as  it  professes  to  do,  an  excdusivo 
right  to  th(!  vesture  ol"  the  land  during  a  limited  time 
and  for  given  purposes,  is  a  contract  or  sale  id'  an 
interest  in,  (»r  at   least  an   interest  eoneerninu'  lands." 


Cell 

--idl 
verl 

wa.-l 
in 

llidl 

I'.-tl 


COXTRACTS  "  XOT  TO  IlK  I'EHFOIiMKD  WITIIIX 

A    YEAH." 


TETEIt  V.  (;<>.>ii»roN. 

[Skill.  :!:»:;:   1  Siiiitli's  i.d.  ('as.  !:!•_'.] 

Those    who   knew    him   best    did   not  consider  Mr. 
Peter  a   marryiiiii-   man.     Theret'ore,  it    was   that    Mr. 


THE  STATUTE  OF  FKAUDS. 


01 


('(»mi)U)ii  tliouulit  li(!  had  uot  defidcdiy  on  iho  riijfht 
sido  of  tho  Imrgaiii  wlu'ii,  oiio  eviMiiii;:,  in  casual  con- 
viM-salioii  across' till!  walnuts  and  wiiic,  this  ai^rt'cmcnt 
was  coino  to:  Peter  to  pay  Cwiinilon  a,  ijiiiiica  down, 
in  consideration  that  ('onipton  would  pay  Peter  a 
thousand  guineas  on  his  (Peter's)  Widdi'ig  day. 
Peter  promptly  paid  down  the  uninea,  and  CoiU[)ton 
poci<eted  it  with  a  grin.      I^eter  giinned,  loo. 

The  next  act  opens  with  Peter's  wedding  day,  two 
years  being  su[)p<)sed  to  have  elapsed.  I>i"illiant 
dresf'cs,  lovely  I)ridesniaids,  rosettes,  church  bells,  and 
indigestible  cake.  But  one  is  conspicuous  bv  his 
al)sence.  T\\o.  reader  can  giu'ss  who.  \\'1umi  Mr. 
P(,'ter  led  .Mrs.  Peter  away  from  the  hymeneal  altar, 
he  sat  down  and  wroti*  an  e.\trenicly  I'riendly  little  note 
to  ( 'ompton,  reminding  him  ot'  that  pleasant  evening 
tliey  spent  together  two  yi'ars  ago,  and  recpicsting  the 
tavor  of  a  check  I'or  amount  due,  as  [)or  agreement 
Complon  was  considerably  taken  altack  ;  but,  like  a 
sensil)le  man,  went  sti'aiglit  to  his  lawyer.  That  gen- 
tleman told  him  to  set  his  mind  at  rest  ;  tor,  said 
he,  in  a  ceilain  slat  nt  e,  enaclcil  of  wise  men  long  ago, 
it  was  provided  that  an  -'agrei'ment  that  is  not  to  be? 
performed  within  the  spac(!  of  one  year  from  tho 
making  thereof"  slionld  bi'  in  writing.  ".Vnd  how," 
asked  the  man  of  law,  complacently  sti'oking  his  chin, 
"can  they  nnike  out  that  this  agreement  was  to  Ix; 
pertbrmiMl  within  tiie  year,  when  this  sly  dog  l\'ter 
doesn't  get  married  t'll  two  years  aft(U'wai'ds V  (Jo 
home,  my  dear  sir,  and  don't  trouble  yourself  any 
more  al)out  it ." 

Unfortunately    for  C^ompton,    this   i-ather    plausible 
view  of  tln!  law   was   not  adoptetl   by  th(!  juilges.  who 


''I 


%  • 


(32 


LEAUINO    CASES   SIMl'LiriED. 


oiinu'  to  the  ooncliisioii  that  the  chiuso  in  the  Stiitutc 
of  Fniiuls  rclerri'd  only  to  :igrocMnc>nts  which,  in  their 
terms,  wcvQ<ihsoIi((d>/  incapahle  of  pvrforniance  v^ithia 
(Jic  i/i'ar,  and  nMinired  tha^  snch  agreements  only  slionhl 
lie  in  writing.  Now,  tliis  agreement  between  Peter 
am!  Compton  was  rU^arly  not  "  incapahh^  of  perform- 
ance "  within  the  year,  for  Peter  might  have  got  mar- 
ried the  very  next  day.  So  that  it  was  binding,  thongh 
not  in  writiiiiT. 


1 
uicil 

'■'71 
the 

see } 

mei 


CONS  IDE  IIATIOX  mrST  BE  EXPRESSED. 


WAIX   V.  WARLTEBS. 

[5  East.,  10;  2  Smitirs  Ld.  Cas.  280.] 

For  Mr.  Warhers  the  Statute  of  Frauds  was  decid- 
edly a  fortnnate  enactment.  He  had  a  friend  named 
Hall,  who  becaint'  indebted  to  Messrs.  Wain  &,  Co.  to 
the  extent  of  £'>(),  and  with  no  [)articnlar  m(>ans  of 
payment.  To  extricates  this  lri<'nd  from  his  dilficulties 
Warltei-s  sat  down  and  wrote  out  the  following  colbit- 
onil  secmity : 

"  Mkssus.  Wain  and  (\).  :  I  will  engjige  to  pay  you 
by  half-past  four  this  day  £")(!  and  exi)en.se.s  on  bill  that 
amount  on  Hall. 

"  [Signed]     fbjXATHA.v  Waultehs. 

"  No.  2,  Cornhill,  April  ;}(),  1S();;." 


TUK    STATUTK    OF    FIJAUDS. 


()3 


TLill,  of  nourso,  did  not  piiy  the  money.  So  Wain 
cii  ('■).  sued  Warlters  on  his  liiianmtoe.  lint  the  docn- 
iin'iit  was  hckl  to  bo  so  inneh  waste  [)ai)er,  as  no  ron- 
xidevation  for  Warlters'  j^romisp  to  pa;/  the  i'oO  was 
t.rj)rpsspd  in  it.  The  Statnte  of  Frauds  re(jnires  that 
tiie  •'  agreement"  sh  ill  <>e  in  wi'iting,  and  as  we  have 
seen,  the  considpration  is  as  much  a  [)art  of  the  "  agree- 
ment "  as  XXw  promise. 


PROMISE  TO  ANSWER  FOR  DEBT,  ETC.,  OF 

'-ANOTHER.'' 


I 
I 


EASTWOOn   V.    KENYON. 


[11  Ad.  v*;-  K.  \\^s.^ 


John  Sntclille,  h.'ginning  to  feel  that  he  was  not  the 
man  he  used  to  he,  thought  it  was  ahout  time  to  make 
his  Avili,  aiid  turn  hi.-<  attention  to  another  and  a  hotter 
world.  He  left  everything  he  had  in  the  way  of  real 
j)ro[)erty  to  his  only  daughter,  and  named  bis  friend 
Eastwood  cxecutoi-.  But  John  Sutelitle  was  not  des- 
tined to  tlie  just  yet ;  and  "mansions  in  the  skie.s  " 
weix*  not  the  only  estates  to  which  he  was  busied  in 
makiuir  his  title  clear.  Before  ho  died  ho  had  sold  all 
th«>  lands  mentioned  in  his  will,  and  bouirht  other 
lands.     Of  those  he  made  no  will  whatever,  and  when 


(51 


LKADINU    CASKS    SIMl'LIl'lKD. 


I 


^H 


he  diod.  as  lie  did  soon  al'lcrwartls,  ihcy  dt'si't'iided  to 
h\<  child  as  heiress  at  law.  Tiiis  young  hidy,  at  the 
time  ol"  her  lather's  death,  was  underage,  and  East- 
wood, ou  the  strength  ol'the  now  useless  will  (in  those 
(lavs  a  will  did  not  speak  I'roui  the  time  of  the  testator's 
death),  and  the  faet  that  he  was  an  old  and  di'ar  friend 
of  her  father's,  took  on  himself  to  aet  as  her  guardian. 
lint  Hast\s-ood,  with  all  his  good  intentions,  was  a  jjoor 
man  :  and,  lor  the  purpose  of  managing  Miss  Sutelilli''s 
all'airs,  he  found  it  necessary  to  hoi'i'ow  money.  lie 
l)oi'ro\v(Ml  £I  10  from  a  person  naint'd  Rlaekhurn,  and 
gave  him  his  promissory  note  for  the  amoinit.  By 
and  hy  Miss  Sutclille  did  what  all  young  heiresses, 
sooner  or  later,  must  do  —  she  got  married  ;  the  for- 
tunate individual  heing  a  Mr.  Kenyon.  Recognizing 
his  claims  to  his  gratitude,  Kenyon  promised  Eastwood 
verhally  that  he  wouhl  pay  Hlackhnrn  tlu!  £l  in.  jini 
.somehow  or  other,  when  th(>time  came,  small  as  the 
sum  was,  Kenyon  conhl  not  l)ring  himself  to  pai't 
with  the  money;  and  linally  this  action  had  to  he 
brought  on  his  promise. 

Kenyon  did  not  deny  tiiat  he  had  made  the  promise. 
But  he  raised  two  ohjeclions  to  the  plaintilf's  claim  : 

(1.)  That  his  promise  was  (me  "  to  answer  for  the 
debt,  def lull,  or  miscarriage  of  another  pei'son,"'  and 
therefore  (l)y  tlu^  Statute  of  Fi-aiids),  shonld  have 
been  in  writing. 

This  |)oint  was  overruled,  for  the  Judges  said  that 
the  words  in  the  stalntt^  contemplated  tlu^  promise 
being  made  to  the  creditor,  and  had  no  reference  when 
the  promise  was  made,  as  here,  to  the  di'btor  himsidf ; 
it  was  a  i)romise  to  answer  for  the  debt  of  '"  another" 
which  was  reipiiretl  to  be  in  writin<>'. 


isd 

m 
en 


THE   STATUTE    OF    riJAl'DS. 


65 


Beaton  from  this  position,  Keiiyon  retreated  to 
another. 

(2.)  That  there  was  no  eoiisltleration  for  liis  prom- 
ise. 

And  tliis  point  was  deeided  in  his  favor,  for  a  mere 
nior.i.!  eonsich'ration,  as  we  liavo  seen,  is  not  strong 
enongh  to  snpport  a  promise. 

So  Eastwood  was  £140  ont  of  pocket  by  his  executor- 
ship. 


' '  GOODS,    \V.  1  Ii'ES  .  I .\7>  MERCIIAXDISE. ' ' 


TISnAI.K  V.  HAHRIS. 


[•-'0  rick.  ;i.] 

Th(i  phiintiir  sned  the  (U'feiuhmt  on  a  verbal  con- 
tract hy  wiiicii  th(!  lalt(>r  airreecl  to  sell  him  two  liun- 
(h'cd  shares  of  stock  owned  by  iiim  in  the  ColHns 
Mannl'actnriiig  C()mi)any.  The  (h'fenchmt  had  never 
delivered  the  stock,  and  hence  this  suit,  in  which  ho 
made  the  (K'fence  that  it  was  a  contract  for  tiio  sale 
of  "  goods,  wart's  and  merchandise,"  and  not  l)eing 
in  writing  he  could  not  b(>  bound.  The  [)laintilf  vigor- 
ously op[)()S(>d  this  view  of  the  case,  but  the  court  hold 
it  was  a  correct  one.  "  The  court  are  of  opinion," 
said  Chief  Justice  Shaw,  "  that  as  well  by  its  terms  as 
by  its  general  i)()licy,  stocks  are  fairly  within  its  oper- 


lie 


LKADINC    CASKS    SI.MPLI  riFJ). 


iition.  Thr  words  'i^oods'  jiiul  »  iiu-ivluimliso  '  nrc 
hotli  of  very  liirjro  sijxiiiticjition.  /ion't  as  incd  in  llio 
civil  l:i\\'  is  almost  as  cxh'iisivc  as  personal  i)ro[Mn-ty 
itself,  and  in  many  resix-ds  it  has  nearly  as  lar<j:e  a 
siirnitieation  in  the  common  law.  The  word  '  merchan- 
dise,' also  includini;'  in  p'ueral  ohjects  of  traiHe  and 
commerce,  is  hroad  enonj;h  to  include  stocks  or  shares 
in  ini'orporated  companies." 


Th 
rnl 
/// 

c//r 
W( 


GOODS  XOr  IX  KXISTEXCE. 


lA'li:   V.  (iltlFl  I\, 


[1  Host  .!i  S.  l'Tl'.] 


Old  Mrs,  Pearson  ordered  two  sets  of  artitieial  te(>th 
of  Mr.  Lee,  a  dentist.  The  latti-r  mad(>  them,  hut  on 
the  day  before  she  was  to  call  at  tin;  otlice  to  have 
them  fitted  the  old  lady  died,  and  as  her  executor  was 
already  supplied  by  nature  with  an  elllcient  array  ol' 
grinders,  the  dentist  was  forci'd  to  sue  for  his  hill, 
which  amounted  to  $105.  The  executor  set  up  the 
defence,  that  it  was  a  contract  tor  the  sale  of  "  goods, 
wares  or  mei-chandise,"  and  shoidd,  therefore,  have 
been  in  writing,  as  reqinred  by  the  Statute  of  Frauds, 
while  the  dentist  contended  that,  on  the  contrary,  it  was 
work,  labor,  and  materials  for  which  he  was    suin<>\ 


THE    STATITK    OF    lUAl  DS. 


67 


^=^ 


The  oxcoutor's  view  wiis  luloijtcd  by  tho  court,  llio 
luU^  hi'iiig  stated  to  ho  that,  if  the  contract  he  such 
llnit  ir/ioi  mi't'ied  out  it  inoiihl  rcsn/f  in  f/te  sttlc  of  a 
rhdHcl^  it  is  a  sale  of  goods,  and  not  a  contract  for 
work  and  hihoi-. 


VALUE  or  (iOODS. 


3 


BAT^1>EV  V.  IWIJKEIl. 


[L'  IJarn.  i!i  C'russ.  ;17.] 

Mr.  Parker  lias  not  paid  an  exorbitant  pi'ico  for  fame, 
lie  went  one  day  into  a  sho[)  and  hargained  for  a 
nun»l)crof  trifling  articles,  a  separate  i)rico  being  agreed 
on  for  each,  and  no  one  article  bi'ini:;  l)rice(l  so  hiijli  as 
£10.  The  articles  tlmt  Mr.  Parker  had  decided  to 
l)ny  he  marked  with  a  i)encil,  or  assisted  in  cutting 
iVoni  a  larger  bulk.  'I'hen  he  went  home  —  he  always 
did  —  to  tea,  desirinij;  that  an  aeconnt  of  the  whole 
shonld  be  sent  after  him.  This  was  done,  and  the 
sum  Parki'r  was  asked  to  pay  was  £70,  iulinis  live  pel' 
cent  discoinit  I'or  ready  mont'V.  Tliis  disi'oiuit  he 
(jnarrelled  with,  not  considering  it  liberal  enough,  and 
when  tho  ijfoods  were  sent  to  him  he  refused  to  accept 
them. 

This  was  an  action  by  tho  store-keeper  against  his 
recalcitrant    customer,    and    the    main   ([uestion    was 


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68 


LEADIXCr    CASES    SIMPLIFIED. 


whether  the  eontnict  \v:is  one  "  for  the  sale  of  goods, 
wares,  or  inereh!in(li.ses  for  the  priec  of  £10"  within 
the  17th  seetlon  of  the  Statute  of  Frauds,  the  honest 
store-keeper  raying  that  it  wasn't,  and  the  other  gen- 
tleman saviiiij:  that  it  was.  The  question  was  deeided 
in  the  affirmative',  the  contract  having  l)een  an  entire 
one,  and  "  '^  being  the  intention  of  that  statute,"  as 
HoLKOYO,  J  -aid,  "•  that  where  the  contract,  eltJicv 
at  the  cowmev-:  :'i''-]if  or  at  tJie  conclusion,  amounted  to 
or  exceeded  lii'  va'ue  of  £10,  it  should  not  hind  unless 
the  requisite?  there  mentioned  were  complied  with. 
The  danger,"  lie  added,  "  of  false  testimony  is  quite 
as  "i-reat  where  the  bargain  is  ultimatelv  of  the  value  of 
£10  as  if  it  had  been  oriuinallv  of  that  amount." 


ACCEPTAXCE  AXD  RECEIPT. 


EL3IOKE  V.  STOXE. 


[1  Tiuin.  -458.] 

Elmore  was  a  livery-stabie  kee|)er,  and  had  a  couple 
of  horses  for  sale,  for  which  he  wai.t:.'  £200.  Stone 
admired  the  horses,  but  not  the  price.  Finding,  liow- 
ever,  he  could  not  get  them  for  less,  he  sent  word  \u\ 
would  take  the  h()rs(-s,  "  tmt,  as  he  had  neither  ser- 
vant nor  stal)ie,  Mr.  Elmore  must  keep  them  at  livery  for 


THE    STATUTE    OF   FRAUDS. 


()9 


I 


him."  In  consequence  of  this  message,  Ehnore  re- 
moved the  horses  from  hissale-stiil)le  into  another  stable, 
whii'li  he  calh'd  liis  livery  stable.  In  an  action  which 
he  brought  for  the  price,  the  (juestion  was  whether 
such  removal  was  a  sufficient  constructive  delivery  to 
take  the  case  out  of  the  Statute  of  Frauds,  and  it  was 
held  that  it  was,  as  Elmore  from  that  time  held  the 
horses,  not  as  owner,  but  as  any  other  liverj-stable 
kee{)er  miuht  have  done.  Said  Lord  ]\1axsfieli),  who 
delivered  the  jiulgment  in  this  case:  "There  are 
many  cases  of  constructive  delivery.  A  common  case 
is  that  of  goods  at  :i  wharf  or  in  a  warehouse,  wherci  the 
usual  pi-aetice  is  that  the  key  of  the  warehouse  is  de- 
livered or  a  note  is  aivcn  addressed  to  the  whartinger, 
who,  in  consc(|uence,  makes  a  new  entry  of  the  go'ids 
in  the  nanu^  of  the  vendee \  although  no  transfer  of  the 
local  situation,  or  actual  possessiou,  takes  place.  Thus 
in  thi^  [)rescnt  case,  after  the  defendant  had  said  that 
the  horses  must  stand  at  livery,  and  the  piaintitf  had 
acce[)ted  the  order,  it  made  no  diflerence  whether  they 
stood  at  livery  at  the  vendor's  stable,  or  whether  they 
had  been  taken  away  and  put  in  some  other  stable. 
The  plaintilf  possessed  them  from  that  time,  not  as 
the  owner  of  the  horses,  but  as  any  other  livery-stable 
keeper  might  have  them  to  keep." 


»  *  J1 


m 


70 


LKADIXO    CASKS    SIMPLIFIED. 


SHIXDLEK  V.  IIOUSTOX. 


[1  Dcnio,  -18;  1  X.  Y.  L'Cl.] 


IIoiislou  owiumI  ;i  lot  of  lumUer  which  Wiis  piled  on 
!i  (lock  iij);irt  from  other  liiiul)cr  there,  iiiul  had  been 
pi-eviously  measured  and  inspected.  Shindler  wanted 
to  l)nv  some  lumber,  and  this  particular  lot  being  in 
view  of  both,  Shindler  olTered  a  certain  i)rico  per  foot 
for  it,  wliicli  Houston  accepted,  sayini>',  "The  lumber 
is  yours."  Shindler  then  told  Houston  to  get  the  in- 
spector's bill  and  take  it  to  his  agent  and  he  would  i)ay 
for  it.  II(^  did  so,  but  paynuMit  was  refused.  Hous- 
ton then  brouglit  an  action  Ibr  the  price,  but  was  un- 
successful, the  court  holding  that  there  had  been  no 
sutficient  "acceptance  and  recei[)t"  of  the  goods  to 
satisfy  the  statute.  It  was  not  denied  that  there*  might 
be  Ji  constructive  acce[)tance  of  goods  as  in  J'JJdiovc  v. 
Stone,  but  the  court  tliought  tliat  in  this  case  what 
was  relied  on  as  cviilencc  of  acceptance  and  rei'ei[)t 
was  notliing  bui  the  acts  and  declarations  of  the  [)ar- 
ties  during  the  course  of  tlu^  sal(\  There;  were  no 
such  subse(juent  acts,  as  constituted  the  open  recogni- 
tion of  an  existing  contract  ;  nothing  in  short  to  show 
that  Houston  considered  that  the  lumber  was  no  longer 
his  property. 


THE    STATUTE    OF    FRAUDS. 


COXTRACT    roXTAIXED    IN   SEVERAL     DOCU- 
MENTS. 


Ih* 


BOYDELL   V.  l>RU3I3IOXD. 


>  '^1 

m 


[U  East,  Ul'.] 


Towards  the  end  of  the  lust  century  Boydell  &,  Co., 
.1  grciit  publishing  tirni  In  London,  determined,  with  a 
view  to  the  encouragement  of  literature  and  their  own 
remuneration,  to  bring  out  a  series  of  engravings  of 
scenes  in  Shakspeare's  plays  ;  and  so  they  issued  a 
prospectus  and  began  vigoronsly  canvassing  for  sub- 
scribers. Tiiere  were  to  be  seventv-two  enijravinirs 
altogetluM',  four  of  wliich  were  to  constitute  a  lunnber, 
and  at  l(>ast  one  number  ^\as  to  be  pul)lished  every 
year.  "  The  [)roprietors,  however,  were;  confident 
that  they  should  be  able  to  product?  tM'o  numbers  in 
the  course  of  ev<'ry  year."  The  [)rice  of  each  number 
was  tliree  guineas.  The  student,  wliosoy?>r/e  is  arith- 
metic, will  thus  perceive  that  the  whole  series  would 
not  hv  completed  for  niue  years,  and  that  the  total 
cost  woidd  be  r)4  guineas.  Amongst  <)ther  enthusias- 
tic, if  not  vci-y  ap[)reciative,  admirers  of  the  grtvit  bard 
Avas  a  ]Mr.  Drummond.  He  agreed  to  Ixu'ome  a  sub- 
scril)er,  and  signed  his  name  in  a  book  bearing  the 
title,  "  Shaks[)eare  Snl)scril)ers,  their  Signatures." 
He  even  put  his  admiration  of  he  dramatist  to  the 
still  sever  test  of  accepting  and  actually  i)aying  for  one 
or  two  of  the  numbers.  P)Ut  his  interest  soon  beiran 
to  languish,  and  at    last   it    became   necessary  to    sue 


72 


LEADIXCr    CASES    SIMrLiriED. 


him  lor  not  aocoplinir  the  nMUiiiiKlor  of  the  onirravinn^s. 
In  defence,  ^M".  Dnunuiond  availed  himself  of  the 
Statute  of  Frauds,  lie  said  that  the  agreement  he 
liad  entered  into  w:is  one  which,  by  its  tcnns,  wiis  iii- 
ciipidde  of  performance  within  a  year  from  the  making-, 
and,  therefore,  to  l)ind  him,  should  have  been  writing. 
The  publishers  replied  to  this  :  — 

1.  That,  :\rr.  Drummond  having  taken  and  paid  for 
several  numbers,  there  was  a  sufHcient  "  performance!  " 
to  satisfy    the  statute,  if  not  Mr.    Drummonc'      con- 
science. 

2.  Thai,  after  all,  the  agreement  ioas  in  writing, 
for  the  book  in  v.liich  Mr.  Drummond  had  signe<l  his 
name,  coupled  with  the  publishers'  prospectus,  consti- 
tuted a  sutficient  memorandum  of  agreement. 

It  was  held,  however,  —  scarcely  to  the  execution  of 
justice  and  the  maintenance  of  truth  :  — 

1.  That  part  ]ierformance  would  not  do,  for  the 
word  ^''  per  for)  nance' ^  could  iu)t  mean  anything  less 
than  comphtwn. 

2.  That  there  being  no  means  of  connecting  the 
Shakspeare  sul)scribers'  book  with  the  pi'os[)ectus, 
without  oral  evidence  —  i^o  reference  being  made  by 
the  one  to  the  other  —  they  did  not  together  consti- 
tute a  sutficient:  memorandum. 

"If,"  said  Le  Br.AXf',  »1.,  "there  had  bc^en  anything 
in  that  book  which  had  referred  to  the  particular  pros- 
l^ectus,  that  would  have  been  sutficient  ;  if  the  title  to 
the  book  had  been  the  same  Avith  that  of  the  prospec- 
tus, it  might,  }ierha[)s,  have  done  :  but  as  the  signa- 
ture now  stands  without  reference  of  any  sort  to  the 
prospectus,  there  was  nothing  to  prevent  tlu!  plaintiff 
from  substituting  any  prospectus,  and   saying  that  it 


TUn    STATUTE    OF    FRAUDS. 


73 


was  the  prospectus  exliibitcd  in  his  sliop  at  the  time  to 
which  the  signature  rehited  ;  the  ease,  therefore,  falls 
directly  within  this  branch  of  the  Statute  of  Frauds."' 
F  )  Boydell  beat  the  publishers,  and  lived  happily 
to  the  end  of  his  days ;  and  his  case  remains  the 
leading  authoiity  for  the  pi  inciple  that,  though  a  con- 
tract may  be  collected  from  several  documents,  those 
documents  must  bo  so  connected  in  sense  that  oral 
evidence  is  unnecessurv  to  show  their  connection  —  in 
other  words,  they  must  be  left  to  3i)eak  for  them- 
selves. It  should  also  be  remembered  by  the  student, 
a>  an  illustration  of  tin  clause  in  the  fourth  section 
of  the  Statute  of  Frauds,  which  says  that  an  agree- 
ment not  to  be  perfoiined  within  a  year  must  ])e  in 
writiuii'.' 


"**( 
"^'3 

..a 


'   Soe  ante,  p.  ('>0. 


'1.,. 
^  ^« 


N. 


■ 


74 


LKADING    CASKS    SIMPLI'^'IED. 


y. — AVefttfa'  Coxteacts  axd  Oeal 

EVIDEXCE. 


OJiAL   EVIDEXCE  XOT  ADMISSIBLE. 


GOSS    V.   NUGENT. 


[,-)  Barn.  .<:.  Adol.  58.] 


Lord  Nupfont  uirrocd  to  buy  of  ]\Ii'.  Goss  .sevoriii  lots 
of  land  for  £4y(),  Jiiid  paid  a  (lo[)osit  of  £>!(),  i\Ir.  (toss 
undortakiiiu:  to  make  a  ffood  title  to  all  \\\o.  lots.  This 
aiiTcemciit  was,  as  the  Statute  of  Frauds  requires  it  to 
be,  in  n'ritin<x.  Soon  afterwards  Mr.  (toss  i'ound  that 
as  to  one  of  the  lots  he  eould  not  make  a  ffood  title  ; 
and  of  course  Lord  Nuuent  would  then  have  been 
perfectly  justified  in  eryinij;  otf  the  barirain.  Instead 
of  doing  so,  he  airreed  orally  to  waive  the  necessity 
of  airood  title  bein_n'  made  as  to  that  lot.  Afterwards, 
however,  his  lordship  seems  to  have  altered  his  oi)inion 
as  to  the  desirability  of  becomiuij:  the  owner  of  the 
land,  and  he  declined  to  pay  the  remainder  of  the 
purchase-money,  relyinp;  on  the  objection  to  the  title. 
In  answer  to  that,  j\Ir.  Goss  wished  to  prove  that  after 
Lord  Nugent  knew  about  the  defect  of  the  title  he 
agreed  to  waive  it.     This,  however,  was  not  allowed. 


WKITTKX    CONTRACTS    AXD    OIIAL    EVIDENCE. 


75 


So  Lonl  Xiiii'cMit  I'ocovcrod  his  deposit,  iiud  got  the 
hclter  of  Mr.  Goss.  "  By  tho  general  rules  of  the 
eoininoii  law,"  said  Denman,  C.  J.,  "  if  there  he  ii  eoii- 
traet  wliieh  has  been  rodiieed  into  writing,  verbal 
evidenee  is  not  allowed  to  be  given  of  what  passed 
between  the  parties,  either  before  the  written  instru- 
ment was  made,  or  during  the  time  it  was  in  a  state 
of  preparation,  so  as  to  atld  to,  or  subtract  from,  or  in 
anv  manner  to  vary  or  qualify  the  written  contract ;  but 
after  the  agreement  has  been  reduced  into  writing,  it 
is  competent  to  the  parties,  at  any  time  before  breach 
of  it,  by  a  new  contract  not  in  writing,  either  aUo- 
i>"ether  to  waive,  dissolve,  or  annul  the  former  agree- 
ments,  or  in  any  manner  to  add  to,  or  subtract  from, 
or  vary  or  (]ualify  the  terms  of  it,  and  thus  to  make  a 
new  contract,  which  is  to  be  proved  partly  by  the 
written  agreement  and  partly  by  the  subsequent  verbal 
terms  engrafted  u[)on  what  will  be  thus  left  of  tho 
written  agreement.  And  if  the  present  contract  was 
not  subject  to  the  control  of  any  act  of  Parliament, 
we  think  that  it  would  have  been  competent  for  the 
parties  by  word  of  mouth  to  dis[)ense  with  requiring 
a  good  title  to  be  made  to  the  lot  in  question,  and  that 
the  action  might  be  maintained.  *  *  *  I3i,t  ^vo 
thiidc  the  object  of  the  Statute  of  Frauds  was  to 
exclude  all  oral  evidence  as  to  contracts  for  the  sale 
of  lands,  and  that  anv  contract  which  is  sought  to  ])e 
enforced  must  I)e  proved  by  writing  only." 


1 


70 


LKADIN'U    CASKS    SIMl'MFIED. 


PY3I    V.   CA3iriJEl^I^. 

[i;  Ki.  .^  HI.  ;:70.] 

The  clcfciulimts  jiiri'ood  to  hiiytVom.Ioliii  Pyin  uthroc- 
oiirlith  part  of  the  beiicrits  to  iUHTiio  from  an  inven- 
tion of  his.  It  AViis  aixreetl  that  tiiis  piin;hase  was 
only  to  be  made  if  an  en_ij:ineer  named  Abernetiiie 
approved  of  the  invention.  Tiicy  then  made  a  written 
memorim(him  of  the  airreement,  withont  pnttinij  down 
the  condition  abont  ^Ir.  Abernetliie's  ap[)roval.  Mr. 
Abernethie  did  )io(.  api)r<)ve  ;  and  the  (pu^stion  was, 
whether  the  condition  couM  be  proved  by  oral  evi- 
dence. In  ijiving  jiidirnieiit  that  the  evidence  was 
admissil)k',  Erlk,  C.  J.',  said:  "The  point  made  is 
that  this  is  a  written  airreement,  absolnte  on  the  facie 
of  it,  and  that  evidence  was  admitted  to  show  it  was 
conditional  ;  and,  if  that  had  beiai  so,  it  wonld  have 
been  wronir.  Bnt  I  am  of  o[)inion  that  tiie  evidence 
showed  that  in  fact  there  was  never  any  airreement  at 
all.  *  *  *  Xhc  distinction  in  i)()int  of  law  is  that 
evidence  to  vary  the  terms  of  an  airreement  in  writinir 
is  not  admissible,  bnt  evidence  to  .skoiv  that  there  is  not 
an  agreement  at  all  is  admifiniblc.'" 


WRITTKN    CONTRACTS    AND    OUAL    EVIDENCE. 


LATENT  AMDiaUITY  MAY  BE  EXPLAIXEJ). 


SARGENT  V.  ADAMS. 


[:$  Gray,  72. ] 


The  defendiint  entered  into  !i  written  agreement  to 
lease  to  the  phiintiir  the  "Adams  House,"  in  Boston, 
for  a  term  of  ten  years.  The  defendant  bad  fitted  up 
an  old  hostelry  called  the  Laml)  Tavern,  as  a  hotel, 
and  had  christened  it  the  "Adams  House."  The  en- 
trance to  the  hotel  was  on  Washiniiton  Street,  and  was 
numbered  371.  The  rest  of  the  liround  floor  of  the 
buikling  was  fitted  up  for  stores,  which  were  numbered 
1,  2,  o,  4,  and  i)  Adams  House.  When  the  time  came 
for  the  defendant  to  [)rcsent  the  plaintiff  with  the  biase, 
the  latter  discovered  that  it  did  not  include  all  these 
stores,  but  only  one  of  them.  He,  therefore,  refused 
to  accept  it,  and  ])r()ught  an  action  to  recover  back  a 
sum  of  money  Avhich  be  had  advanced  to  the  defendant 
under  the  agreement.  It  would,  doubtless,  have  been 
hard  for  the  defendant  to  have  shown  that  he  had 
complied  with  his  agreement  had  the  Supreme  Court 
not  allowed  him  to  prove  by  parol  that  the  agreement 
originally  was  that  the  lease  should  include  oidy  the 
hotel  proper  and  one  of  the  stores.  "  The  court  are 
of  opinion,  "  said  the  distinguished  Chief  Justice 
Shaw,  "  that  this  constituted  a  case  of  latnit  aml)ig- 
uity,  as  that  is  understood  and  explained  in  this 
department  of  the  law.     *     *     *     \^  i\\\\^  under  that 


7.S 


LICADINO    CASK8    SIMTLIFIKD. 


class  of  rjiscs  where  the  very  ^'cMicral  description 
adopted  ill  !i  ('oiitniet  will  npply  to  two  distinct  .sul)- 
ject.s,  and  so  there  is  si  latent  and)ii:uily."' 


BUT  NOT  "  PATENT  AMBiarTTY 


!  . 


f 


ASPl-KN'S    ESTATE. 


[1'  Wall.  jr.  :i(;8.] 


Mr.  Mathias  Aspden,  a  wealthy  and  eccentric  Amer- 
ican, died  without  issue,  in  London,  in  the  year  1S24. 
There  were  plenty  of  relatives  to  take  care  of  his 
money,  and  as  they  could  not  agree  on  the  division,  a 
costlv  and  lenirthv  liti<ration  was  the  result.  iNIatters 
were  somewhat  complicated  hy  the  fact  that  ^Ir.  Asp- 
den left  a  will  in  which  he  devised  his  estate  without 
further  description  to  his  "  heir-at-law."  Every  one 
of  several  nephews  thought  he  exactly  filled  tlie  l)ill, 
and  one  of  them  was  particularly  anxious  to  let  the 
court  hear  evidence  that  his  uncle  always  treated  him 
the  hest,  and  thought  more  of  him  than  of  the  others, 
in  fact,  considered  him  as  his  heir-at-law.  But  the 
court  held  that  there  Avas  no  latent  aml)iguity  to  ex- 
plain here;  if  it  was  anj'thing  it  was  a  p((tent  ambig- 
uity and  parol  evidence  was  not  admissihlo  to  explain 
that  kind.     "  The  difficulty  i)resented  in    this  will," 


■WIUTTEN    C'ONTUACTS    AND    (»I!AL    KVIDKNCK. 


7<J 


s!ii(l  Mr.  Jiistiff  GiiiKit,  "  is  not  oiu;  arising  uijon  ii 
latent  !inibi<i"uil y,  as  wiicre  a  testator  I)t'(iuoathcs  his 
estate  to  his  ne[)hew,  Joini  Smith,  and  has  two  or  more 
nephews  of  tiiat  name.  On  the  contrary,  the  t(5stator 
has  described  a  certain  pi'rson,  or  a  certain  chi.-.  of 
persons,  as  tlio  ol»jeets  of  his  hoinity  ;  the  description 
given  cannot  e(|nally  apply  to  two  or  more." 


4 

■X   ■ 

L       H 

i;»5  III 


SUI'I'LEMEXTARY  (JOXTRACT  MA  Y  BE  SHOWN. 


^    'i^ 


3IALPAS   V.  LONDON  «X.  SOL'THWESTEUN  K.  CO. 


[L.  K.  1  ('.  P.  ly.w.] 

A  cattle-dealer  wanteil  to  send  some  cattle  from 
Guildford  to  I>lingt()n.  They  told  him  at  Guildford 
Station  th:it  the  beasts  would  be  duly  forwarded  to 
Kinir's  Cross  ;  but  they  inveiiiied  him  into  siii'ninji'  a 
consiijfnment  note  by  which  the  cattle  were  directed  to 
be  taken  to  tlu^  Nine  Hlms  Station,  whit;h  was  not  so 
far  as  the  cattle-dealer  cx^jccted  them  to  go.  At  this 
intermediate  station  they  remained  and  suffered  injury 
from  not  being  f(!d  properly,  etc.  The  company's 
point  was  that  the  consignment  note  was  conclusive 
evidence  of  the  terms  of  the  contract,  and,' therefore, 
that  they  had  never  undertaken  to  carry  further  than 
the  Nine  Elms  Station.     But  for  the  cattle-dealer  it 


80 


LEADING    CASES    SIMPLIFIED. 


was  successfully  contondcd  that  the  consignment  note 
did  not  constitute  ji  complete  contract,  and  that  parol 
evidence  could  be  uiveu  of  the  conversation  that  had 
taken  place  between  the  plaintiff  and  the  company's 
servants  before  the  consignment  note  was  signed. 

In  rogni'd  to  the  company's  argument  that  the  writ- 
ten contract  was  conclusive  evidence  that  tlu>  cattle 
were  to  be  carried  to  Nine  Elms  and  no  farther,  Eijlk 
C.  J.,  said  :  "  I  think  that  it  is  not  so,  because  it  seems 
clear  on  the  evidence  that  there  may  have  been  a  con- 
tract to  carry  to  Nine  Elms,  and  an  additional  contract 
to  carry  the  cattle  on  from  then(;e  to  King's  Cross. 
The  parol  evidence,  therefore,  docs  not  vary  or  contra- 
dict the  written  document,  but  only  makes  an  addition 
to  it." 


USAGES  OF  TRADE  MAI'  BE   SHOWN. 


COOPER  V.  KAXE. 


[1!)  WoiKl.  ;i8(;;  Law.son,  Us.  &  C.  33i).] 

A  property  owner  in  the  capital  of  the  State  of  New 
York  emploved  a  contractor  to  oiade  a  lot  so  as  to  make 
it  conform  to  a  plan  of  the  streets  established  by  the 
city.  The  parties  signed  a  written  agreement,  which 
provided  that  the  contractor  should  excavate  the  lot 
and  make  the  necessarv  embankments  within  a  certain 


WRITTEN    COXTKACTS    AND    OKAL   EVIDENCE. 


81 


time,  for  which  the  other,  when  the  work  was  done, 
was  to  pay  him  $1S0.  As  the  excavating  went  on  the 
contractor  piled  the  sand,  which  was  taken  out,  on  an 
ndioiniiii!;  h)t,  and  as  was  not  straiii^e  (for  when  tlic 
work  wa.5  finished  the  sand  taken  out  was  worth  at  least 
$150),  both  pai'ties  claimed  it.  *'  It  certainly  iras 
mine,"  said  the  owner,  "  and  our  contract  docs  not  say 
that  you  are  to  have  $180  (iiul  the  sand  for  your  work," 
But  the  contractor  answered  that  it  had  always  been 
understood  in  Albany  that  the  material  excavated  be- 
longed to  the  excavator,  and  this  was  one  reason  why 
he  had  taken  the  contract  so  low.  In  the  court,  where 
the  parties  at  last  resorted,  the  contractor  offered  to 
give  evidence  of  this  custom,  but  the  judge  would  not 
allow  it  and  gave  the  sand  to  the  ownci"  of  the  prop- 
erty. But  on  ai)[)eal  the  Supreme  Court  thought 
this  all  wrong,  and  ordered  the  court  below  to  permit 
the  contractor  to  show  such  a  usage,  if  he  could.  It 
was  oidy  fair  to  conclude,  they  said,  that  the  parties 
contracted  v/ith  reference  to  it. 


80UTIER  V.  KELLEK3IAX. 

[IS  Mo.  500.] 

This  somewluit  novel  case  calls  for  a  little  arithmeti- 
cal calculation.  Mr.  Soulier,  Avho  was  doubtless 
l)uilding  a  new  house,  ordered  four  thousand  shingles 
of  a  lumber  dealer,  and  paid  for  them,  too.     In  due 


'J 

,  3 


82 


LEADIN(f    rASf:S    SI.AU'LIFIED. 


course  of  time  the  dealer's  wagon  eamc  along,  and 
dumped  eiglit  large   packages   of  shingles  down  into 
Soutier's   yard.     "It  strikes  me  that  there  lias  been 
somethina-  Avronir  in  the   count,"  said   Soutier,  when 
he  saw  the  p'ickages,  "  I  guess  I'll  check  them."     He 
went   to  work  and    counted    them  all  over,  when  lo  ! 
there  were  only  two  thousand  five  hundred  shingles  all 
told.     Then  he  hied  his  wayto  the  lumber  dealer's.      "  I 
paid  vou  for  four  thousand  shin<rlcs  and   vou  have  sent 
me  only  two  thousand  five  hundred,"   ho  vociferated. 
"How    many  bundles  did   you    say  you    received?" 
calmly  retui'iied  the  lumber  man.     "  Eight  bundles," 
answered    Soutier    "but  what    has  that    to    do   with 
it ;  I  paid  you  for  four  thousand  shingles,  not  for  eight 
bundles."     "  Ah,"    rejoined    the    dealer,  "  but    you 
know  Ave  never  count  them,  we  put  them  u[)  in  bun- 
dles of  a  certain  size,  and  we  call  two  l)undles  a  thou- 
sand."    "And  if  there  are  only  seven  hundred  ia  the 
two  bundles   do  3'ou  call  them  a  thousand,   then?" 
asked    Soutier.     "  Oh,    yes,"    responded  the    dealer. 
"  If    that's    your    arithmetic,    it    isn't     mine,"    said 
Soutier,  and  he  immediately  brought  suit  for  the  ])rice 
of  the  one  thousand  five  hundred  shingles  he  had  not 
received. 

As  very  often  happens,  the  first  court  thought  the 
buyer  was  rii>ht  and  the  seller  Avronij,  while  the 
second  court  thought  just  the  oi)i)()sito  about  the 
case.  But  unfortunately  for  Soutier,  the  second 
court  was  the  Supreme  Coui't,  and  .so  ho  lost  his 
monc}'.  The  Supreme  Court  said  that  usage  was 
always  admissible  to  explain  the  meaning  of  a  con- 
tract.    The  court  below  could  never  have  heard  of  the 


WllITTEX    CONTRACTS   ANJJ)    ORAL    EVIDENCE. 


83 


English  Riibbit  Ciise,'  or  it  never  would  have  made 
such  a.  mistalve.  lu  tliiit  celebrated  case,  Mr.  Smith 
leased  from  Mr.  Wilsou  a  rabbit  warren,  and  cove- 
iiiintod  that  at  the  end  of  the  term  ho  would  leave  on 
the  land  at  least  ten  thousand  ral)bits,  Wilson  to  pay 
hiin  £()0  a  thousand  for  all  he  left.  When  the  lease 
was  up  two  persons  v/ore  appointed  to  count  the  rab- 
bits, and  they  reported  the  number  at  nineteen  thou- 
sand two  hundred.  But  when  Wilson  came  to  settle 
ho  wanted  to  pay  for  only  sixteen  thousand  rabbits,  on 
the  ground  that  "  thousand,"  in  that  part  of  the  coun- 
try, when  ap[)ried  to  rabbits,  meant  twelve  hundred, 
or  a  hundred  dozen.  Smith  did  not  see  it  that  way, 
and  brought  an  action  for  nineteen  thou:?and  two  hun- 
dred rabbits,  at  £C)0  a  thousand.  But  the  court 
allowccl  Wilson  to  show  that  the  custom  of  the  coun- 
try was  just  as  he  had  contended  ;  and  all  the  judges 
of  the  Kinii's  Bencli  aa'reed  that  this  was  correct  law. 
Tlierefore,  said  the  Sui)reme  Court  of  Missouri  in 
Soutlpv  V.  KeUcrmaa,  "  the  usage  of  a  particular  trade 
is  evidence  from  which  the  intention  and  agreement  of 
paities  may  be  iin[)lied  ;  and  although  it  cannot  con- 
trol an  ex[)ress  contract  made  in  such  terms  as  to  bo 
entirely  inconsistent  with  it,  yet  in  express  contracts 
the  terms  employed  may  have  their  true  meaning  and 
force  best  understood  bv  reference  to  such  usaire. 
Evidence  of  such  usage  is  adnntted,  not  to  vary  the 
terms  of  an  cxi)ress  contract,  or  to  chan<ie  the  obliga- 
tion, but  to  determine  the  meaniui*;  and  oblii>"ation  of 
the  contract  as  made.  The  usage  must  appear  to  be 
so  general  and  well  established  that  knowled«re  of  it 


""'C 
■^'0 
.•^3 


■■'I' 


!4 


'  Smith  V.  Wilsou,  3  Barn.  &  Adol.  1'1S\  Lawsou,  Us.&C.  iW5. 


84 


LEADIXC^    CASKS    SIMl'LIFIKD, 


may  be  presuincd  t<»  exist  ainoiiir  those  dealing  in  the 
husinoss  to  "whieh  it  a[)i)lies  ;  so  that  the  coiitraet  of 
the  parties  ma}'  be  taken  to  liavc  been  made  with 
reference  to  it.  In  this  conntry,  many  articles  which 
arc  in  terms  sold  by  the  l)nshel  (a  dry  iiieasnre  con- 
taininix  •eiirht  li'idlons),  are  in  fact  sold  by  weiiiht,  the 
bushel  beiiiij;  understood  to  mean  a  certain  numl)er  of 
poinuls,  and  the  number  of  pounds  diffi'ring  in  diller- 
eut  articles —  as  salt,  wheat,  etc.  When  such  custom 
becomes  general  and  Avell  established,  so  as  to  be 
known  to  the  community,  it  is  obvious  that  a  contract 
for  a  given  n'umber  of  l)ushels  must  mean  the  bushel 
as  ascertained  l)y  weight,  whether,  in  fact,  the  number 
of  pounds  of  the  article  sold  would  measure  more  or 
less  than  the  real  bushel.  In  the  ])resent  case  tlun-e 
was  evidence  that  a  general  custom  prevailed  in  tlu; 
lumber  trade  of  estimating  two  packs  of  shingles  of 
certain  dimensions  as  a  thousand  shingles,  without 
reference  to  the  number  of  i)ieces  In  the  pack.  If 
such  was  the  usa<;e  of  tlu;  trade,  so  <>"eneral  and  well 
established  that  those  l)uving  and  *elHni>'  mmht  be 
presumed  to  deal  in  reference  to  it,  there  does  not  ap- 
pear to  have  been  any  such  contract  shown  in  this  case 
as  would  prevent  the  usage  from  applying.  Tin;  law 
commissioner  seems  to  have  thought  that  the  defend- 
ant could  not  escape  from  liability,  if  the  contract  was 
at  so  much  per  thousand,  unless  there  was  an  exjjress 
agreement  that  two  bundles  sliould  re^jresent  a  thou- 
sand. This  was  an  Incorrect  statement  of  the  law  in 
a  case  where  evidence  was  given  of  a  general  usage, 
that  a  thousand  shlnghvs  meant  two  i)acks  of  certain 
dimensions.  Whetluu'  there  was  as  full  evidence  of 
the  usage  given  as  ought  to  have  ])een  given,  is  not  '.\ 


■WRITTEN    CONTRACTS    AXD    ORAL    EVIDENCE. 


85 


question  upon  which  wc  i)iiss  ;  hut  there  was  evidence 
of  the  usage,  U[)on  which  the  pui'ty  wtis  entitled  to 
hiive  the  hiw  dilFerently  dechired,  if  the  evidence 
proved  the  usage  as  general,  Avcll  established  and 
known  so  that  contracts  might  be  presumed  to  l)e 
made  Avitli  reference  to  it. 


USAGE  MUST  NOT  COXTRADICT  CONTRACT. 


liLACKETT  V.  ROYAr^  EXCHANGE  ASS.  CO. 


•its 


[2  Cromp.  &  J.  244;  Lawson,  Us.  &  C.  413.] 

An  insurance  company  made  a  policy,  which  by  its 
terms,  was  expressed  to  be  on  "  the  ship  (that  is  the 
l)ody),  tackle,  apparel  ordinance,  munition,  boat  and 
other  furniture  of  the  ship  called  the  Thames"  from 
London  to  Calcutta.  One  stormy  day  during  the 
voA'age.  a  suiall  ])oat,  which  was  slung  upon  the  outside 
of  the  ship,  on  tlie  quarter,  was  washed  overboard  and 
lost.  The  underwriters  demurred  to  paying  for  this, 
and  when  they  were  sued  wanted  to  show  a  usage  of 
the  trade  that  boats  slung  as  this  one  was,  were  not 
protected  by  marine  policies.  But  this  they  were  not 
permitted  to  do.  The  evidence  did  not  pretend  to  ex- 
plain any  ambiguous  words  in  the  policy,  or  to  intro- 
duce matter  on   which  it  was  silent;  but  it  was    at 


C 


I 


SG 


LEADIXG    CASF'.S    SIMPLIFIED. 


direct  variance  with  the  words  of  the  policy,  and  in 
phiin  opposition  to  its  hinguago,  for  whereas  the  pol- 
icy impntcd  to  be  on  the  ship,  and  furniture,  and  apparel 
generally,  the  usage  offered  was  to  say  that  it  was  not 
on  all  the  furniture  and  apparel,  but  upon  only  a  part, 
excluding  the  boat.  "  Usage,"  said  Lord  Lyxdiiurst, 
in  a  pithy  sentence  since  quoted  by  a  thousand  courts, 
"  Usage  may  l)e  admissible  to  explain  what  is  doubt- 
ful;  it  is  never  admissible  to  contradict  what  is  plain." 


ILLEGAL    CO^TRACT8. 


87 


TI.  —  Illegal  Coxtkacts. 


CONTRACTS   TO  PUEVEXT  COMPETITION. 


tf 


GULICK  V.   AVARD. 


:^3 


[5  Ilalst.  S7;   IS  Am.  Dec.  ;38i).] 


Thoro  wore  sciunps  with  eyes  .set  on  the  sweets  of 
the  post-office  (lepiii'tnient,  long  before  the  days  of 
Star  lionte.s.  When  James  Monroe  was  President, 
Giilick  and  Ward  were  competitors  for  the  contract  to 
carry  the  mails  between  New  York  and  Philadelphia, 
the  Postmaster-general  having,  under  authority  of  an 
act  of  Congress,  advertised  for  proposals  for  this  ser- 
vice. Gulick  and  Ward  concluded  that  as  both  could 
not  have  it,  there  was  no  use  cutting  each  other's 
throats  in  the  endeavor  to  make  the  lowest  bid,  and  so 
they  made  an  agreement,  which  they  drew  up  and 
signed,  that  if  Gnlick  would  withdraw,  and  not  make 
any  offer  nor  induce  any  one  else  to  compete,  and 
Ward  should  get  the  contract,  he  should  pay  Gulick 
$1,000  for  his  magnanimity.  The  long  and  short 
of  it  was,  that  Gulick  vv'ithdrew  from  the  compe- 
tition, that  Ward  did  get  the  contract  and  then, 
very  ungenerously  refused  to  hand  over  the  $1,000. 


'K  . 


111'- 


88 


LEADING    CASES    SIMPLIFIED. 


Gulick  sued  him,  but  without  success.  The  court 
tohi  hini  that  courts  of  Justice  did  not  sit  for  the 
purpose  of  cufori-ing  contracts  aj::ainst  public  policy, 
and  his  contract  with  "Ward  was  decidedly  one  of  that 
kiducv.  An  arrangement  which  diminishes  the  num- 
ber of  com[)etit()rs,  lessens  the  number  of  i)roposals,  or 
induces  anvlxxlv  to  abandon  his  intention  of  inakinir 
un  olfer,  is  directly  opposed  to  the  policy  of  the  act  of 
Congress  which  calls  for  bids  upon  the  work.  It  de- 
feats the  statute,  for  it  destroys  the  competition  and 
precludes  the  advantages  which  competition  is  in- 
tended.to  result  in.  And  Gulick  saw  nothing  of  that 
thousand  dollars,  and  lost  the  contract  into  tlu^  bar- 
gain, as  his  reward  for  making  an  illciral  a<jreement. 


AGREEMENTS  TO  IXFLUENCE  OFFICIALS. 


TOOL  CO.    V.  NORRIS. 


[!'  Willi.  45.] 


About  the  middle  of  ISCl,  when  the  United  States 
government  was  purchasing  arms  on  an  extensive 
scale,  an  nbiquitous  individual  ai)peared  at  Washington, 
and  after  lobbying  around  with  great  energy  for  a  few 
weeks,  obtained  a  contract  from  the  Secretary  of  War 
for  twenty-tive  thousand  muskets  of  the  Providence 


I 


ILLKOAL    CONTRACTS. 


89 


Tool  Conif)iUiy,  iit  twenty  doUiirs  each.  Norris's  exer- 
tions wcrii  due  to  the  fact  thiit  he  had  ])eeu  cmphned 
I)V  the  tool  coiiq)!!!!}'  to  get  this  contract  iVoni  the 
oovernnuMil,  thev  aizreeini::  to  pay  him,  in  the  event 
of  his  success,  ji  very  handsome  compensation.  But 
wlien  the  "vvork  was  done  a  dispute  arose  between 
Xorris  and  the  tool  con'[)any  concerniiiij:  the  amount 
of  coin[)ensation  which  he  should  receive,  and  the  re- 
sult of  it  was  that  hv  had  to  l)ring  an  action  against  the 
company.  The  jury  gave  him  a  verdict  for  $13,500. 
But  on  a[)peal,  the  Supreme  Court  of  the  United 
States  (after  listening  to  an  able  argument  by  the 
counsel  for  the  defendants),  set  tiie  verdict  aside,  the 
court  holding  that  Norris  could  re-cover  nothing  for 
his  services,  on  the  ground  that  all  agreements  for 
compensation  for  procuring  favors  or  contracts  from 
Icijishitive  bodies  or  <>()vernment  officers  are  ai^ainst 
public  policy  and  void.' 


COXTRACrS  IMPEDIXC  THE  AIUnXISTIiATION 

OF  JUSTICE. 


COLLIXS   V.  BLAXTERX. 

[2Wils.  ;U1;   1  Smith's  Lcl.  Cas.  400.] 

AmoniTst  other  misdemeanants  to  be  tried    at    the 


'  If  the  stiuk'ut  is  in  search  of  a  counsers  argument  to  serve  as 
a  model  for  liimself,  he  will  find  one  in  tlie  brief  of  the  counsel  for 
the  defendants  in  tlie  Supreme  Court  as  reported  in  this  case.  It  is 
one  of  the  best  in  tlie  American  K^'ports,  its  brevity  being  as  con- 
spicuously noticeable  as  its  learning  and  rhetoric. 


i)(> 


i.KADlNO    CASKS    SIMI'LIFIKD. 


Staftortl  Smnmer  Assizes,  170"),  were  five  persons 
charged  with  perjiirv.  It  h:ipi)eiiet1,  however,  that 
their  prosecutor,  a  ^Ir.  Kiulge,  was  not  of  that  h)fty 
character  which  wouKl  proni[)t  him  scornfiill}^  to  reject 
a  brihe.  The  perjurers  decided  that  he  might  be 
"  o-ot  at,"  and  they  set  to  work  accordingly.  A 
friend  of  theirs,  a  disreputable  surgeon  named  Collins, 
was  persuaded  to  pay  Rudge  £350  to  "  square  "  him  ; 
and,  to  indcnniify  Collins,  the  perjurers  and  another 
"  pal,"  named  Blantern,  executed  a  bond  for  the  pay- 
ment of  £350.  There  would  scarcely  seem,  however, 
to  flourish  among  perjurers  quite  that  chastity  of 
honor  which  is  ascril)ed  by  some  people  to  thieves  in 
their  dealings  with  one'  another :  for  when  Collins 
hinted  at  the  repayment  of  the  money  he  had  ad- 
vanced he  was  laughed  at  for  his  pains  ;  and  wdien  at 
last  he  sued  on  the  bond,  the  jjcrfidious  crew  success- 
fully pleaded  that  the  consideration  for  the  bond  was 
illegal,  and,  although  it  did  not  appear  on  the  face  of  the 
deed,  vitiated  it. 

Said  Lord  Chief  Justice  Wilmot,  in  memorable 
words,  "  You  shall  not  sti[)ulate  for  ini(piity.  All 
writers  upon  our  law  agree  in  this  —  no  polluted  hand 
shall  touch  the  pure  fv)untains  of  justice.  VViioeveris 
a  l)arty  to  an  unlawful  contract,  if  he  hath  once  paid 
the.  money  stipulated  to  be  paid  in  pursuance  thereof, 
he  shall  not  have  the  help  of  a  court  to  fetch  it  back 
again  ;  you  shall  not  have  a  right  of  action  when  you 
come  into  a  court  of  justice  in  this  unclean  manner 
to  recover  it  back.     Procul  Olproculesteprofanir'' 


ILLEGAL   COXTKACTS. 


ill 


SCOTT    V.   AVERY. 


[.■)  II.  L,  Ciis.  811.] 

This  Wiis  ail  action,  by  a  irciitleiiiaii  whose  uood  j^liin 
had  j^ono  to  tho  bottom,  airaiiist  a  Newcastle  Insurance 
Association,  of  which  both  plaintiff  and  (lofeiulants  wore 
niombers.  The  dcCendants  relied  on  one  of  the  rules 
of  their  jissociatioii  (which  the  plaintilf  as  a  niembcr 
had,  of  course,  bound  himself  to  observe),  which  pro- 
vided that  no  member  should  l)rin<x  Jm  action  on  a 
iH)licv  till  certain  persons,  bv  wav  of  l)ein<i:  arbitrators, 
had  ascertained  the  amount  that  ought  to  be  paid.  In 
answer  to  that  objection,  the  i)laintiff  contended  that 
an  aixreement  which  ousts  the  superior  courts  of  their 
jurisdiction  is  illegal  and  void,  and  that  the  rule  relied 
on  by  the  defend:iiits  was  of  such  a  nature.  This 
view,  however,  did  not  prevail.  Judgment  was  given 
for  the  defendants  on  the  ground  that  tho  contract  did 
not  oust  the  su[)erior  courts  of  their  Jurisdiction,  l)ut 
only  rendered  it  a  condition  precedent  to  an  action 
that  the  amount  to  bo  recovered  should  be  tirst  ascer- 
tained l)y  the  persons  specified.  The  limitation  to  the 
rule  that  all  contracts  obstructini:;  or  iuterferino-  with 
the  administration  of  the  law  are  illegal  and  void,  was 
concisely  stated  by  Mr.  Justice  Colkridge,  as  follows  : 
"  If  two  parties  enter  into  a  contract,  for  the  l)reach 
of  which  in  any  particular  an  action  lies,  they  cannot 
make  it  a  binding  term  that  in  such  event  no  action  shall 
be  maintaina])le,  but  that  tho  only  remedy  shall  be  by 


roferenco  to  arbitration. 


The  courts  will  not 


enforce  or  sanction  an  agreement  which  deprives  the 
subject  of  that  recourse  to  their  jurisdiction  which  has 


,3 


112 


LKADIN'fJ  "CASKS    SIMI'MFIKD. 


been  t'ojisidiM-cd  <i  I'iLrlit  tiuiliciiMhlc,  cvoii  by  tho  con- 
current will  > if  the  piirtics.  But  iiothiiiix  i)rcvciits  \r,u'. 
tics  fVoin  iisccrt.'iiiiiiiu"  iiinl  coii^^fitiitiiiir,  :is  tlicyi)le:is(\ 
{\n\  ciuisc  of  action  which  is  to  bitconic  tho  subjcct- 
matter  of  decision  by^th(/coirrts.'  Covenantinjj^  i)ai'ties 
may  airrco^hat,  in  case  of  an  aneir<'<l  breach,  tho  dani- 
aircs  rcn(h're(l  sh.dl  be  a  sfnn  tixed  or  a  snni  to  be 
ascertained  l)v  A.  B.,  or  by  arbitrators,  to  I)c  clioscn 
in  such  and  sucli  a  niannei',  and  until  this  l)o  done  or 
the  nonfeasance  be  satisfactorily  accountcMl  for,  that  no 
action  shall  bo  maintainabjo  for  tho  broach." 


COXTIi'ACTS  VIOLATIXff  LA]]' 


COWAN  V.  MIT.IJOURX. 


i 


[L.  U.  L'  Kxch.  L';;i.j 

Mr.  Cowan  was,  in  1-S() 7,  the  secretary  of  tho  Liver- 
pool Secular  Society,  and  tin;  defendant  tho  proprietor 
of  some  assenil)ly-roonis  in  that  town,  (\)wan  eni^aged 
the  rooms  for  a  series  of  lectures  to  show  that  our 
Lord's  character  was  defective,  and  His  teachin<»;  erro- 
neons  ;  and  that  the  Bible  was  no  more  inspired  than 
any  other  book.  At  the  time  tho  defendant  let  the 
rooms  he  did  not  know  the  nature  of  tho  lectures  to  be 
delivered,  and  when  he  found  out,  his  rcliirious  sensi- 
bilities were  shocked,  and  ho  declined  to  complete  his 
a<>;reement.     The  secularibt  now  sued  him  for  breach 


I 

ii-ij:(j.\i.  ( ontkac  rs. 


93- 


of  ('onti'iU't ,  Itiit  tilt'  coui'l  (K*i(l«'<l  that  lli(>  purpose  for 
which  the  |)hiinlitr  iiitfiukMl  to  usi;  the  rooms  \v;is 
ilh'<:;!il,  find  the  colli  r:i(t ,  ihcrdoi-c,  oiio  \vhi<'h  couhl  not 
l)tv  ciiforctMl  at  law.  "The  (|ucstion  is,"'  said  Chief 
•  Haroii  Kr.1,1-^,  "whether  one  wlio  has  contracted  to 
let  rooms  for  a  purpose  styted  in  i.^eneral  terms,  and 
who  atterwards  discoveis  that  they  are  to  he  nsed 
for  the  (hdiveiy  of  h'ctiireiS  in  support  of  a  p'roi)osi- 
tion  A\diieh  states,  with  r''S[)ect  to  our  Saviour  and 
His  leachiiiii,  that  thelirst  is  defective  and  tlu^  sec- 
ond  misleading',  is  nevejM  heless  hound  to  i)erniit  his. 
rooms  to  he  used  foi-  that,  [)ur|)()s(!  in  pursuance  of  that 
i^^'ueral  conti'act.  'I'here  is  ahundant  authorit\'  for 
saying"  that  rhristianity  is  part  and  parcel  of  the 
law  of  the  land,  and  that  therefore  to  support  and 
maintain  pul)licly  the  [)roi)ositioii  I  have  al)ove  men- 
tioned is  a  violation  of  the  tirst  princi[)les  of  the  law, 
and  eaimot  l>e  tlom^  without  l)las[)heiiiy.  I,  there- 
fore, do  not  hesital(^  to  say  that  the  delVnchint  was 
not  only  entitled,  hut  was  called  on  and  hound  hy  the 
law,  to  refuse  his  sanction  to  this  use  of  his  rooms." 


CONTRACTS  VTOLATTXG  STATUTES. 


1 

f 
i' 

>:- 

I 

.  \. 

■ 

PATTEi:  V.  GREELEY. 

[Ill  Mete.  L'S4.] 

It  is  enacted  hy  statute  in  ^Massachusetts  that  "  no 
person  shall  do  any  manner  of  lahor,  business  or  work, 


1)4 


LEADING    CASES    SIMPLIFIKD. 


except  onl}'  -works  of  neeessit}^  aiul  cliiirity  on  tlu! 
Lord's  day."  This  being  the  state  of  the  hiw,  a 
couple  of  bakers  drew  up  an  agreement  which,  after 
reciting  that  one  liad  purchased  of  the  other  certain 
bread  routes,  bound  the  other  in  the  sum  of  $500  to 
quit  these  routes,  and  not  thereafter  to  interfere  with 
the  eaters  of  bread  tliereon.  To  this  they  set  their 
hands  and  seals,  but  even  this  solemnity  did  not  ijrc- 
vent  the  defendant  from  doing  just  what  he  had  coven- 
anted not  to  do.  Then,  when  he  was  sued  for  the 
$500,  he  was  mean  enough  to  set  np  the  defense  that 
the  l)ond  had  been  executed  and  uelivered  on  Sunday. 
And  this  being  proved,  the  court  decided  that  it  could 
liot  coini)el  him  to  pay  it,  the  plaintiff  being  unable  to 
show  that  the  execution  on  Sunday  was  a  work  of 
cither  "necessity"  or  "charity."  "Was  its  execu- 
tion," said  Chief  Justice  Shaw,  "  '  any  manner  of 
labor,  business,  or  work,'  within  the  meaning  of  the 
statute?  Certainly  it  was.  The  Legislature  intended 
to  prohibit  secular  l)usiness  on  the  Lord's  da}',  and  did 
not  confine  the  prohibition  to  manual  labor,  but  ex- 
tended it  to  the  makini*'  of  barirains  and  all  kinds  of 
trafficking.  The  genei'al  princi})lo  that  an  action  Avill 
not  lie  on  a  contract  made  in  contravention  of  a  stat- 
ute is  well  established." 


^i»i 


ILLKGAL    COXTUACTS. 


05 


IMMORAL  COXTUACTS. 


PEAUCE  V.  KROOKS. 


[L.  K    1  Exch.  21 4.] 

The  plaintiffs  were  coaeli-buildcrs  and  the  defendant, 
one  of  the  demi-monde,  had  purchased  a  hron<i:hani 
from  them  on  credit,  with  an  airreemcnt that  she  nii2;ht 
return  it  before  the  end  of  the  year  on  i)avin2:  the 
price  of  its  hire.  She  did  return  it,  l)ut  without  pay- 
injx  anvthinir,  and  thev  brousrlit  an  action  for  the  iirice. 
On  the  trial  thei'o  was  evidence  that  one  of  tiie  part- 
ners knew  that  the  defendant  was  a  i)rostitute,  l)ut  no 
direct  evidence  that  eith(U'  of  them  l<new  that  the 
hrouirham  was  intended  to  be  used  by  her  in  her  trade. 
Baron  Buamwell  instructed  the  jury  that  in  one  sense 
everythiuiT  which  was  supplied  to  a  prostitute  is  sup- 
l)lied  to  h(>r  to  enable  he:  .o  carry  on  her  trade,  as, 
for  instance,  shoes  sold  to  a  street  wallier  ;  but  that 
the  tilings  supplied,  for  which  no  action  can  be  l)roijght 
on  account  of  the  immorality  of  the  contract,  must  be 
not  nierclv  such  as  would  be  nccessarv  or  useful  for 
ordinary  purposes,  and  might  also  l)e  applied  to  an 
immoral  cue,  but  they  must  be  such  as  would  not  be 
required  at  all  except  with  that  view.  The  jury  l)rinir- 
iiig  their  knowledge  of  the  world  to  bear  upon  tiie 
case,  thereupon  found  u  special  verdict  that  the 
brougham  was  used  by  the  defendant  as  part  of  her  dis- 
play to  attract  men,  and  that  the  plaintitfs  knew  it  was 
to  be  used  for  that  purpose,  which  the  judge  thought 


;;i 


96 


LEADIN'Cr    CASES    SIMPLIFIED. 


was  a  very  proper  one,  as  the  inference  that  a  prostitute 
(who  swore  that  she  conhl  not  read  writing),  reciuircd 
ail  ornamental  carriage  for  the  purposes  of  her  calling 
was  as  natural  a  one  as  that  a  medical  man  would  want 
a  hrougham  for  the  puri)(>se  of  visiting  his  patients. 
The  defendant  therefore  li:id  a  verdict  which  was  af- 
firmed on  appeal,  all  the  judges  l)eing  of  opinion  that 
any  person  who  contributes  to  the  performance  of  an 
immoral  act  by  supplying  a  thing  with  the  knowledge 
that  it  is  going  to  i)e  used  for  that  purpose,  cannot  re- 
cover the  price  of  the  thing  so  supplied. 


WAGERS. 


GOOD   V.  EL1.IOTT. 


I" 


[;!  Term  Ucp.  C'.is.] 

Good,  Elliott  and  Heath  were  discussing  local  mat- 
ters at  the  cross-roads,  when  Good  ha[)pened  to  remark 
that  that  new  wagon  of  David  Coleman's  Avas  a  beauty. 
"Coleman  hasn't  any  wagon,"  said  Elliott,  "  he  sold 
it  to  Susannah  T^'e  long  ago."  "  Nonsense,"  returned 
Good.  "What  will  you  bet?"  said  Elliott.  "I'll 
bet  you  live  guineas,"  said  (iood,  "  that  Susannah 
Tye  has  not  bought  Coleman's  wagon."  "  I'll  take 
it,"  replied  Elliott.  A  forfeit  was  put  up  in  Heath's 
hands.     On  iiiquiry  it  turned  out  that  Elliott  was  mis- 


l  if 


ILLEGAL    CONTUACTS. 


97 


tiikoii,  :um1  tliiit  the  wiigou  was  still  ColciiKiii's.  But 
lie  Avould  not  pay  up,  and  (rood  sued  him.  The  (pies- 
tion  Avas  wheliier  a  waiter  was  i'ec()V^eral)le  at  all,  and 
the  court  decided  that  except  where  they  are  against 
l)ui)iic  polic}',^  or  are  indecent,'  or  tend  to  injui-e  the 
feeliniis  of  third  i)arties,''  waii'crs  are  not  illeiial  ;  hut  it" 
not  paid,  may  be  recovered  at  law. 


'  Oil  this  iiroiiiiil  the  following  Wiigers  liiivr  Ix'cii  declared  void 
at  comniou  law  :  That  one  of  the  parties  would  not  marry  (because 
contracts  in  restraint  of  marriage  are  void,  siivpast]).  lOi'),  Hartley  r. 
Kice,  10  East,  22;  that  a  certain  bird  will  win  a  ctjck-light  (because 
it  encourages  cruelty),  lirogdeii  v.  ^Marriott,  JJ  I5ing.  X.  C.  SS  ;  as  to 
the  future  amount  of  the  hop  duty  (because  it  might  expose  to  all 
the  world  the  amount  of  the  public  revenue,  and  Parliament  was 
the  only  proi)er  place  for  the  discussion  of  such  matters),  Alherford 
V.  Beard,  -'  Term  Kep.  (ilo;  as  to  the  duration  of  the  life  of  Napo- 
leon IJonaparte  (i)eeausi'  it  gave  one  party  an  interest  in  keeping  the 
king's  enemy  alive,  and  theotlier  an  interest  in  compassing  his  death 
by  unlawful  means),  (Jilbert  c.  Sykes,  k;  East,  l."0;  as  to  whether  a 
ju'isoner  will  be  convicted  on  a  criminal  chiirge  (because  it  gives  one 
of  the  parties  an  interest  in  obstructing  or  corrui)ting  the  fountains  of 
justice),  Evans  r.,Iones,  5  ]\Iee.  &  W.  77;  as  to  the  result  of  an  elec- 
tion (because  it  gives  each  party  an  interest  in  corrupting  the  vote 
or  falsifying  the  count),  IJuiin  v.  Hiker,  4  .lolms.  4l'i!;  s.  c.  -4  Ain. 
I)ec.2'.)L*;  Vischer  c.  Yates,  U  Johns.  21  ;  liust  c.  Gott,  »  Cow.  1(J'J; 
.s.  r.  IS  Am.  Dec.  t'.)7;-IIill  c.  Kidd,  4;i  ("al.  Clo. 

■^  Thus  a  wager  as  to  whether  a  certain  person  is  a  man  or  a 
•woman,  (Da  Costa  r.  Jones,  2  Cowp.  720),  or  as  to  whether  an  un- 
married woman  will  have  a  child  by  a  certain  day  (Ditchburii  r. 
Gohlsmith,  4  Camp.  ir»2),  is  voitl. 

■'  So,  as  said  in  llie  principal  case,  a  wager  that  a  j'oung  lady  who 
passes  for  twenty-three  years  of  age  is  really  thirty-three,  or  that 
she  sfpiints,  or  lias  a  mole  on  her  breast,  would  be  void.  In  a  later 
Knglish  case  A.  and  J5.,  two  rival  coach  drivers,  each  bet  tlio  other 
his  watch  that  Col.  H.  would  go  by  his  coach  to  an  entertainment 
that  evening.  t)n  an  action  being  brought  for  the  stake,  Aiuiott, 
.!.,  at  the  beginning  of  the  argument,  .said  :  "  I  doubt  whether  this 
wager  be  legal.  The  effect  of  it  would  be  to  subject  a  third  party 
to  great  inconvenience  by  exposing  him  to  the  importunities  of  tlie 


98 


LEADING    CASES    SDirLIFIED. 


The  stuclent  should  ivmcinher  to  note  iinothcr  excep- 
tion, viz.  :  that  the  particular  wager  shall  not  be  pro- 
hibited by  statute.  In  their  irrancbnothorly  care  for 
the  morals  of  tlie  citizen,  the  Legislatures  of  most  of 
the  States  have  made  illegal  a  variety  of  Avagers,  and 
therefore  such  bets  as  come  within  these  statutes  will 
be  void,  although  valid  enough  at  common  law. 


COSTIiACTS  ly  RESTRAINT  OF  TRADE. 


AHiElt  V.  THACHKU. 

[Ill  rick.  :A\  ;U  Am.  Dec.  UK.] 

Thacher,  on  seHin<r  Alizer  all  his  shares  in  the  Boston 
Iron  Company,  agreed  with  him  that  he  would  not  at 
anv  time  thereafter,  in  his  own  name  or  in  the  name  of 


proprietors  of  those  vehicles;  any  person  who  has  walkcil  through 
Piccadilly  must  be  sensible  that  this  is  no  small  inconvenience." 
When  the  case  came  to  a  decision  all  the  judges  were  of  the  same 
opinion.  ".V  waiter  like  the  present,"  said  Lord  Ellkxboroi'GII, 
"  that  a  gentleman  shotdd  go  by  one  of  these  conveyances  rather 
than  another,  the  decision  of  which  would  expose  him  to  improper 
i.nportunity  and  interruptions,  and  would  abridge  the  exercise  of 
his  right  of  electing  his  own  conveyance,  certainly  exposes  him  to 
some  inconvenience.  What  has  been  said  of  the  inconvenience 
subsisting  in  Piccadilly  is  applicable  to  this  case,  and  arises  from 
the  same  circumstances.  This  wager,  then,  being  pregnant  with 
these  consecjuences  to  other  parties,  seems  to  me  to  be  illegal." 
Eltham  r.  Kingsman,  1  IJarn.  i.*i  Aid.  (is3. 


ILLEGAL    CONTItACTS. 


99 


another,  couiluct,  curry  on,  use  or  employ  the  art, 
trade  or  occupation  of  an  iron  founder  or  caster,  or  be 
concerned,  interested,  employed  or  engaged,  directly 
or  indirectly,  in  any  manner  whatsoevei,  or  under  any 
pretense  whatsoever,  in  the  business  of  founding  or 
castinjij  of  iron.  Almu*  wanted  tlie  agreement  to  be 
iron-chid,  and  not  content  with  ordinary  writing,  it 
was  executed  with  all  the  fornjality  of  a  seal.  But 
when  some  years  after  he  came  into  court  to  enforce 
this  contract,  the  judges  verv  '^ahnly  told  him  that  it 
was  no  use,  for  this  was  another  of  those  contracts  that 
are  against  public  policy  and  void.  The  agreement 
excluded  Thacher  everywhere  and  at  all  times  from 
participating  in  the  trade  referred  to.  And  then  the 
court  proceeded  to  point  out  to  Alger  several  reasons 
why  such  agreements  as  this  were  unreasonable,  and 
could  not  l)e  listened  to  for  a  moment. 

1.  They  injure  the  parties  making  them,  because 
they  diminish  the  means  of  procuring  a  livelihood  and 
acom[)etency  for  their  families.  They  tempt  improvi- 
dent persons  for  the  sake  of  present  gain  to  deprive 
themselves  of  the  power  to  make  future  accjuisitions  ; 
and  expose  them  to  imposit^  )n  and  op[)ression.  Long 
ago  in  England,  in  Henry  the  Fifth's  time,  a  poor 
weaver  was  bewailing  the  loss  of  some  of  his  cloth, 
and  declaring  that  he  would  follow  his  trade  no  longer, 
when  up  comes  a  designing  fellow  who  offers  him  a 
triilin!''  sum  not  to  weave  anv  more.  The  weaver, 
read}'  for  anything,  accepts  the  money,  signs  a  bond 
not  to  work  at  his  trade  again,  and  goes  off  to  the 
tavern  to  enjoy  himself.  Next  morning,  forgetting 
all  about  his  aLrreement  of  the  dav  before,  he  irets  out 
his  loom  to  earn  his  dinner.     Mephistophiles,  hearing 


■,ll 
■ill 


t 


100 


LKADIXCr    CASES    SIMI'LIFIKO. 


the  noise,  pokes  liis  head  llii'otiuh  the  window  tind 
points  to  the  bond.  The  weaver  tells  liini  to  go  to 
ILuh's  M'ith  his  I)()nd  ;  he  isn't  goinir  to  starve,  and  he 
knows  no  other  trade  but  weaving.  ^Ie[)histoi)hih's, 
however,  goes  to  eourt  Avith  his  l)ond,  witli  poor  suc- 
cess as  we  shall  sec*  below. 

2.  They  deprive  the  public  of  the  services  of  men  in 
the  emploAMiients  and  eai)a('ities  in  which  they  may  ])o 
most  useful  to  the  coniniunity  as  well  as  themselves. 
Dr.  Skilful  and  Dr.  Blunderer  are  surgeons.  Tluj 
former  has  all  the  i)ractice  until  the  lattei-  pays  him  a 
handsome  annuity  not  to  take  out  his  lancet  again  as 
long  as  he  lives.  It  is  obviously  a  good  law  which 
makes  such  an  agreement  null  and  void. 

3,  4,  !ind  T).  Thev  discoura<::e  industry  and  enter- 
prise;  diminish  tlu;  i)roducts  of  ingenuity  and  skill, 
prevent  eompetition,  enhance  prices,  and  expose  the 
public  to  all  the  evils  of  monopoly.  Thus,  if  all  the 
gas  companies  in  the  United  States  wen^  to  induce 
Mr.  Edison,  1)y  paying  him  a  couple  of  millions  of 
dollars,  to  promise  under  his  hand  and  seal  that  he 
Avould  never  invent  or  enM-t,  or  manufacture  another 
electric  light  in  the  United  States,  the  bond  would  not 
prevent  us  from  having  our  streets  and  houses  lighte<l 
by  electricity,  invented  and  manufactured  b\'  M; . 
Edison,  if  ho  should  conclude  to  break  his  word,  wlii(  h 

U  !'}8tani'e  it  is  to  be  hoped  he  would. 
>.' M  for  ti)ese  reasons  Ali^er  left  the  court-hou^e 
v--'  ;".  *^  lis  money,  u  sadder  and  a  wiser  man.  He 
nn-lii.  h.ive  fared  worse  had  he  lived  in  the  time  of  the 
Phmtagenets,  for  when  the  Judge  to  whom,  by  liis 
hiwyer,  the  fifteenth-century  Mephistophiles  sent  his 
bond,  read  it  over,  he  tlew  into  a  passion,  using  soi.ic 


ILLEGAL    CONTRACTS. 


101 


very  strong  langnaoc  in  some  very  strange  French,  to 
the  effect  that,  "  If  the  phiintltFwas  hero  he  should  go 
to  ])rison,  until  he  hail  paiil  a  good  round  tine  to  the 
king  for  his  pains,  by  God."  ' 


31TTCHETj   v.  REYXOI^DS. 

[<;  r.  Wins.  181 ;   1  Smith's  U\.  Ct\s.  .".08.] 

Lcadiiiir  eastwards  from  that  sweet  thorouohfare, 
Gray's  Inn  Road,  London,  is,  or  till  quite  recently  was, 
a  street  called  Liquorpond  Street.  In  that  street, 
soniethini;  like  two  hundi'cd  years  asfo,  there  dwelt  a 
prosperous  baker.  So  prosi)erous  was  he  that  he 
baked  himself  a  fortune,  and  retired  on  it  into  private 
life.  But  before  retiring  he  sold  his  business  to  the 
plaintiir,  and  executed  a  bond  in  which  he  undertook 
not  to  carry  on  the  ])usiness  of  a  baker  in  the  parish  of 
Sf.  Andrei/:,  Ilolhorn,  for  Jive  yearn,  under  a  penalty  of 
£50.  The  baker  did  not  know  his  own  mind.  Ketire- 
ment  suited  him  little,  and  his  lingers  were  everlastingly 
itching  to  l)e  in  the  pudding.  The  end  of  it  was  that 
louix  !)efore  the  five  vears  were  over  he  was  bakinii" 
away  as  hard  as  ever,  and  in  the  aforesaid  parish,  too. 


'  The  ratlicr  vigorous  judjiment  of  IItll,  J.,  in  this  case  is  thus 
reportcHl :  "  .\  inii  intent  vons  pnrres  avec  deinnrre  snr  ley  <|ue 
I'oblisation  est  voide  ce  (lue  lo  condition  est  encounter  eonnnou 
ley  ct  per  Dieu  se  le  plaintiff  fait  ici/  il  irra  al  pnsuii  tanque  il  itt<tj'uit 
fine  uu  lioi/.''^ 


K 


102 


LEAOIXO    CASKS    ^IMI'MFIKD. 


■>ii,, 


Mitchel  now  sued  the  perfidious  baker  on  the  bond  to 
recover  the  £50,  and,  what  is  more,  lie  did  recover  it. 
Though  a  contract  in  ahmhtte  restraint  of  trade,  is 
not  worth  the  paper  it  is  written  on,  a  contract  in  par- 
tial restraint  of  trade  (tliat  is  where  the  tradiuii;  is  not 
to  take  place  within  a  cei'tain  area)  may  be  good. 
But  even  here  there  is  another  proviso,  viz.  :  that  the 
restraint  nmst  be  reasonable,  that  is  to  say,  it  must  not 
be  greater  than  will  ailbrd  a  fair  protection  to  the 
benefited  party.  The  contract  of  our  friend,  the 
baker,  was  very  reasonable  — £10  a  year  for  five  years 
was  a  good  deal  of  money  in  the  seventeenth  century, 
and  five  years  was  not  more  than  an  ordinary  vacation. 
Besides  this,  there  were  other  places  than  this  little 
parish  where  he  could  knead  and  bake  to  his  heart's 
content,  with  no  fear  of  interference.  And  so  the 
agreement  was  i)erfe('tly  legal.  Thus,  and  much  more 
to  the  same  etiect,  spake  the  court  oi  King's  Bench. 


CONTRACTS  IX  IlESTPAINT  OF  MARIUAGE. 


LOWE   V.  PEERS. 


H  Burr.  L>1'25.] 

In  the  ardor  of  liis  affection  and  the  hey-dey  of  his 
youth,  Mr.  Newsham  Peers  was  fool  enough  to  sign, 
seal  and  deliver  a  document  to  this  purport :  — 


ILLEGAL    CONTRACTS. 


103 


'*  I  do  hereby  promise  Mrs.  Ciitheriiic  Lowe  that  I 
will  not  niiirry  Nvitii  iiiiy  person  l)esides   hersi-ir;   if  I 
do,  I  agree  to  pay  to  the  said  Catherine  Lowe  £1,000. 
within  three  months  next  after  I  shall  marry  anyone 
else." 

Ten  yenrs  passed  away,  and  then  the  faithless  swain 
married  a  girl  that  was  not  Catherine  Lowe.  The  in- 
jured lady  brought  an  action  on  the  doeument,  but 
after  learned  argument  it  was  resolved  that  it  was 
void  as  being  in  restraint  of  marriage.  According  to 
the  view  of  the  judges  —  the  only  sensible  one  —  Mr. 
Peers'  promise  had  not  been  to  many  Mrs.  Lowe,  as 
might  seem  at  tirst  sight  to  be  the  case,  but  he  had 
promised  not  to  marry  ant/hod y  except  Mrs.  Lowe  :  so 
that  if  tiiat  good  widow  from  cajjrice,  or  otherwise  re- 
fused to  marry  him,  he  would  be  compelled  to  live  all 
his  days  the  celibate  and  cheerless  life  of  a  bachelor. 


K 


MARRIAGE  BROKAGE  CONTRACTS. 


s; 


CRAWFOUl>   V.  RUSSELL. 


[('.2  Barb.  1)2.] 

Jeremiah  Russell  was  a  wealthy  widower  in  Ulster 
County,  New  York.  Christina  Koe  had  her  eyes  on 
the  old  irentleman's  wealth,  and  made  up  her  mind  to 


104 


LEADlN<i    TASKS    SIMl'I-II'Ii:!). 


I" 


::j 


hiivo  it  ;  but  rocogiiiziuir  tlu;  aduufc  th;il  two  heads  iiro 
better  than  one,  she  detei'miiied  to  takc^  lier  friend 
Susan  Craui'ord  into  the  seeret.  Susan  thought  the 
idea  Ji  splendid  one,  but  refused  to  move  a  hiind  unless 
she  was  to  share  the  ducats.  "  I  don't  want  the 
money  now,''  said  Susan,  "  but  the  old  man  can't  live 
very  long,  and  1  will  wait  for  my  share  till  you  are  a 
rich  vounii  widow."  So  the  two  women  set  to  work 
to  draw  u[)  an  agreement  about  the  matter,  and  i)res- 
ently  tlu^y  luid  signed  and  sealed  a  contract  in  these 
words  : 

"  Susan  shall  do  all  she  can  to  aid  a  marriaire 
between  Jeremiah  and  Christina  l)y  her  influence  and 
services,  and  in  consideration  thereof,  Chi-istina  I'aith- 
fully  agrees  and  promises  that,  in  case  she  becomes  the 
wife  of  Jeremiah  and  outlives  him,  she  will  pay  Susan 
for  her  services  in  this  matter  $2,()()()  in  cash,  and  pur- 
chase for  her  a  piano-forte  and  pay  for  educating  her 
duuirhter  Kate  and  give  her  a  irold  watch." 

Then  thev  laid  sieije  to  old  man  Russell's  heart.  Su- 
san  certainly  did  her  dutv.  She  never  left  olf  praisiuijr 
the  virtues  of  dear  Christina  when  ho  was  around,  she 
invited  him  to  her  house  where  the  young  lady  would 
unexpectedly  drop  in,  she  provided  refreshments  for 
them,  and  when  the  widower  bei>'an  to  yield  to  the 
charms  of  the  lovely  Christina,  it  was  Susan  that  had 
to  i)ay  for  all  the  wood  and  oil  that  was  burned  during 
the  lonij  winter  eveninos  that  he  carried  on  his  court- 
ing  in  the  Crawford  house.  At  last,  in  less  than  a  year, 
the  bait  Avas  hooked,  and  Christina  became  Mrs.  Jere- 
miah Russell.  Then  as  soon  as  the  wedding  feast  was 
over,  Susan  Crawford  began  to  speculate  on  the  date  of 


TLLR(}AT-    CONTIIACTS. 


105 


the  I'lMicrnl.  Thorc  sho  iniscMlciiliited  very  l';ir,  Cor  it 
\v;is  Iwciit  V  years  before?  Jeremiuli  got  ready  for  the 
uiidei'faUer,  l»tit  wlieii  ho  did  die  Cliristiiia  was  a  very 
rich  widow,  and  a  veiy  mean  one,  for  she  deelined  to 
p.iv  her  ohl  friend  anvthinjx.  Susan  brouiilit  an  ae- 
tion,  hut  it  was  no  use.  The  court  said  that  this 
was  a  marriage  brokago  coiitract,  and  void.  True,  the 
civil  huv  aih)wcd  match-makers  to  receive  compensa- 
tion for  their  services,  its  policy  ap[)earing  to  be  tluit 
all  aid  rendered  in  encourajiiiiii-  and  cstablishiui;  mar- 
riages  was  for  the  good  of  the  nation  and  productive 
of  public  morality,  inasmuch  as  it  discouraged  forni- 
cation, adultery,  and  concubinage;  but  the  common 
law  looked  at  the  thing  in  ji  dillerent  light.  The  lat- 
ter considered  that  the  cllect  of  such  auencics  was  to 
enco\irage  influences  of  a  pernicious  nature  b}'^  pro- 
moting many  unha[)py  marriages,  causing  the  loss  of 
the  inlluence  of  parents  over  their  children,  holding 
out  false  and  seductive  ho[)es,  by  the  self-interest  of 
l)roka<ro  amMits  —  these  were  rcaarded  as  so  corrui)tive 
in  their  tench'ucy  as  to  be  adjudged  Avholly  illegal  and 
void.  So  Susan  got  nothing  for  her  pains,  not  even 
the  money  she  had  laid  out  for  food,  and  light,  and 
lire,  for  the  agreement  being  void,  the  claim  for  these 
fell  with  it. 


s.  < 


lot; 


LKAUlXa    CASES    ISIMrHFIlil). 


COrUT  WILL  NOT  All)  lUTllKlt  PAJi'TY 


HOLMAX  V.  JOHNSON. 


[Cowp.  ;ui.] 


j\Ii'.  Ilolmaii  was  a  tea  uiei'diaiit ,  doiirjc  business  at 
DimkirU,  at  whicli  [Aiwe  lie  sold  and  didiVvTcd  lodoliii- 
son  (jiiito  a  lariio  (juanlity  ot"  tliu  j)r()diict  of  the  C-oli's- 
tial  Eni[)iro.  Wlicii  tho  tinio  canu!  for  him  to  \v,\y  for 
it,  Joliiisou  lu'jj^lcftt'd  tills  littlo  mattor,  and  .so  Mr. 
Hohnan  had  to  go  across  to  Eniiland  and  .sue  liini  for 
tiie  price.  Here,  Johnson  i)lca(]cd  tliat  Iho  t(>a  had 
l)ccn  bouiiht  l»v  lilm  to  be  snuiiiu'h'd  into  England; 
tliat  INIr.  Ilolnian  knew  it,  and  tlio  contract  was,  there- 
fore, void.  jNIr.  Ilolnian's  counsel  replied  that  it  was 
not  void,  because  there  was  nothing  illeir'i  iu  t!ic  con- 
tract when  made,  and  he  was  not  res[)on,->iM  for  what 
might  be  done  with  the  tea  after  it  w  tst,  out  of  his 
hands,  and  in  addition  he  argued  that,  even  if  it  was 
illegal,  dohnson  was  as  l)ad  a  sinner  as  Ilolman  in  the 
matter,  and  it  Avould  be  very  wrong  to  let  him  take 
the  tea  and  the  price,  too,  as  his  share  of  the  swag. 

The  court  decided  that  he  was  right  on  the  first  point, 
and  therefore  Johnson  must  })ay,  but  that  if  tho  con- 
tract had  been  illciral,  Ilolman  would  have  received  no 
aid  from  them.  Lord  IMansfikld,  who  delivered  the 
judgment,  laid  down  the  rules  of  law  on  this  question, 
and  the  reasons  on  which  thev  are  founded,  with  ijfreat 
clearness,  iu  the  following  lauiruaiie  :  "The  obiection 
that  a  contract  is  inunoral  or  illegal  as  between  plaintiff 


__ 


ir.LKOAL    COXTIIACTS. 


107 


and  di^ftMuliiMt,  sounds  at  all  tiinos  very  ill  in  the  mouth 
ofllic  dcfiMidant.  It  i.s  not  t'nv  his  sake,  however,  that 
the  objection  is  over  allowed,  hut  it  is  founded  in  g<'n- 
oral  pi'ineii)]es  of  policy  which  the  (h'f'endaut  has  the 
advantage  of,  contrary  to  the  real  Justice,  iu  between 
him  and  tin;  |)laintill',  by  accident,  if  I  may  so  say. 
The  principle  ot'})ubli(!  policy  is  this  :  e.v  dofo  malonon 
orllnr  acfio.^  No  court  will  lend  its  aid  to  a  man  wiio 
founds  his  cause  of  action  ujjon  an  immoral  oi"  an 
illegal  act.  If  from  tho  plaintilV's  own  stating,  or 
otherwise,  the  cause  of  action  a[)pears  to  arise  ex  turpi 
cansa,^  or  th(^  ti'ansgression  of  a  positive  law  of  this 
conntiw,  there  tho  court  savs  he  has  no  riirht  to  be 
assisted.  It  is  upon  that  ground  the  court  j^oes  ;  not 
for  the  sake  of  the  defendant,  but  l)ecause  they  will 
not  lend  their  aid  to  such  a  plaintiff.  So  if  the  phi"n- 
tilf  and  defendant  were  to  change  sides,  and  the  de- 
fendant Avas  to  bring  his  action  against  the  })laintiff, 
the  latter  would  then  have  tho  advantage  of  it,  for 
where  l)oth  are  equally  in  i'auh,  jj'^ti or  est  conditio  de- 
fendentisr'' 


*  N  )  ciuise  of  action  can  firow  o>it  of  a  (luestionable  transaction. 

'^  "  From  a  sca'y  dealiiii;." 

^  Tiie  one  in  possession  lias  tlie  <'  inside  tracli." 


:.5 


1.  ' 


108 


LEADING    CASES    SIMri.IFIED. 


EXCEPT  WTIEEE    ILLEGAL  PURPOSE  IS  NOT 

COMPLETED. 


•"•w 


SPRING   CO.  V.  KXOWLTOX. 

[lo;^  u.  s.  4',).] 

The  officers  of  the  Conirress  ;iik1  Empire  Spring  Com- 
panv,  in  New  York,  formed  a  nice  little  scliome  for  the 
benetit  of  themselves  and  other  stockholders,  viz.  :  to 
increase  the  stock  to  the  amonnt  of  $200,000,  every  old 
stockholder  to  have  a  full-paid  $100  share  for  $.S0. 
A  paper  was  passed  round  among  them,  to  the  eU'i'ct 
that  whoever  did  not  pay  the  whole  of  the  $S0  when 
called  for  by  the  company,  would  submit  to  forfeiting 
"what  he  had  i)aid.  This  was  signed  by  the  stock- 
holders, among  them  being  Mr.  Knowlton,  vice-presi- 
dent of  the  company.  Having  taken  more  of  tiio  now 
stock  than  ho  could  carry,  Knowlton  was  unable  to 
pay  more  than  twimty  per  cent  on  it,  and  in  pursuance 
of  the  agreement,  his  payments  were  forfeited.  It  is 
here  important  to  note  that  this  ^\  hole  scheme  of  in- 
creasinj  the  stock  in  this  wav  was  in  violation  of  the 
law  of  the  State,  and  therefore  illeiral  and  void.  A 
little  while  after,  ini'jressed  eitlier  by  fear  of  the  law, 
or  the  unrighteousness  of  the  affair,  the  company  con- 
cluded to  abandon  the  wholt;  thing,  and  refunded  tiie 
money  which  had  been  })aid  for  the  new  stock.  But 
they  inade  no  effort  to  i)ay  the  forfeited  sunjs,  and  so 
the  executor  of  Mr.  Knowlton,  who  had  meantime 
died,  brouirht  an  r.ction  in  the  Federal  court  to  recover 
his  money  which  had  been  forfeited  i-u  this  way. 


ILLEGAL    CONTRACTS. 


109 


Tlic  compuuy  set  up  the  liiuhly  moral  defence,  that  no 
trihunal  would  a'd  a  party  to  an  illegal  contract  in  get- 
ling  his  inoiuiy  back.  But  the  court  replied  that  every 
judge  sat  for  just  this  thing,  if  it  a[)peared  that  the 
contract  had  not  been  c()ni[)lcted  when  the  aid  was 
asked  for.  There  was  always  time  for  repentance  un- 
til the  illegal  all'air  was  consummated.  '•  It  is  as  old 
as  C'omyns,"  '  said  ]\Ir.  Justice  Woods,  "  that  where 
money  has  been  paid  upon  an  illegal  contract,  it  is  a 
general  ruh^  that  if  the  contract  l)e  executed,  and  both 
parties  are  in  pari  delicto,  neither  of  them  can  recover 
from  the  other  llic^  money  so  paid  ;  but  if  the  contract 
continues  executory,  and  the  party  paying  the  money 
l)e  desirous  of  reseinding  it,  he  mav  do  so  and  recover 
back,  by  action,  for  money  had  and  received." 
Luckily  for  the  plaintilf,  the  company  had  weakened 
in  its  unlawful  scheme,  and  he  must  have  his  money. 
And  the  court  gave  judgment  for  the  Know^lton  estate 
for  the  sum  asked,  which  by  this  time  amo.uiited  to 
something  over  fourteen  thousand  dollars. 


'  Sir  John  Comyns,  Ciiicf  Baron  of  the  Court  of  Exchequer,  who 
about  the  vear  17<12  wrote  a  di-'est  of  the  laws  of  Euijlaud. 


:.? 


\u  ' 


4 


no 


LEADING    CASES    S13IFLIFIED. 


yil.  —  Perpormaxce  op  Contracts. 


DISCHARGE  BY  ACT  OF  PROMISEE. 


PECK  V.  UNITED  STATES. 


•<»3i 


[102  U.  S.  05.] 

Mr.  Peck  entered  into  a  contract  with  tlie  proper 
officers  of  the  United  States  to  fnrnish  and  deliver  a 
certain  qnantity  of  wood  an<l  hay  at  the  military  sta- 
tion at  Tongue  River  by  a  certain  day.  All  the  par- 
ties intended  that  the  hay  should  be  taken  from  Big 
Meadows  in  the  Yellowstone  Valley,  for  there  was  to 
be  found  the  only  available  grass  for  hundreds  of 
miles.  The  time  for  the  completion  of  the  contract 
approached  and  as  Mr.  Peck  S(!emed  to  be  going  too 
slow,  and  it  was  absolutely  necessary  that  the  station 
should  have  the  h:iv,  the  iiovornment  officers,  fearinjj 
that  ho  would  not  be  able  to  carry  out  his  contract, 
but  not  waiting  till  the  time  for  its  completion  ex- 
pired,  allowed  other  i)arties  to  go  into  the  Big  Mead- 
ows and  cut  the  hay  for  them.  Of  course,  Mr.  Peck 
could  not  get  the  hay  now,  and  so  failed  to  carry  out 
his  contract.  It  was  held,  however,  in  the  Supreme 
Court  of  the  United  Sttites  that  he  could  not  be  made 


PERFORMANCE  OF  CONTRACTS. 


Ill 


to  suffer  for  it,  as  it  was  not  his  fault.  The  supply  of 
liay  that  ho  had  depended  on  had  ])ecu  taken  away  by 
tlie  United  States  through  its  agents.  They  had  hin- 
dered and  prevented  him  from  performing  his  part  of 
tiie  agreement ;  and  it  was  a  sound  principle  of  law 
that  he  Avho  prevents  a  thing  being  done  shall  not 
avail  himself  of  the  non-[)erformance  he  has  occa- 
sioned. 


DISCHARGE  BY  ACT  OF  LAW. 


BAir^Y  V.  Di:  CRESPIGNY. 


[L.  U.  1  Q.  B.  180.] 


People  do  not,  as  a  rule,  choose  as  eligible  sites  for 
residence  purposes  the  land  adjacent  to  a  railroad 
depot.  For  this  reason,  the  plaintiti'  in  this  case  had 
certainly  good  cause  to  complain  of  the  way  he  was 
treated.  lie  had  taken  a  lease  of  a  house  and 
grounds  for  eighty-nine  years  from  a  party  with  the 
ornamental  name  of  De  Crespigny,  and  desiring  to  be 
select  in  his  surroundinsrs,  had  taken  a  deed  from  that 
gentleman  in  which  Mr.  De  Crespigny  covenanted  with 
the  plaintilf  "  that  neither  he  (Do  Crespigny)  nor  his 
heirs  and  assigns  sjiould  or  would  during  the  term, 
permit  to  be  built  on  the  paddock  fronting  the  prem- 
ises  demised    by    the    deed   towards   the    north,  any 


1 


112 


LEADING    CASES    SIMPLIFIED. 


1:1 


messuaoc  or  d\velliiiii:-housc,  eoiich-liouse  or  stiiblo,  or 
other  erection,  save  and  except  siiimncr  or  pleasure 
houses  in  private  u'ardeu  ground,  and  also  a  church  or 
chapel  at  the  eastern  extremity  of  (he  paddock." 
This  was  in  1>>U).  Twenty-tivo  years  rolled  by  when 
one  day  a  crowd  of  workman  appeared  on  the  scene, 
and  in  a  few  weeks  there  arose  on  the  sacred  paddoclc 
op[)osite  the  plaintiti"s  residence,  a  building  that  was 
neither  a  sinnmer-house,  church  nor  chapid,  i)ut  on 
the  contrary,  to  (piote  the  language  of  the  plaintilfs 
declaration,  "  certain  erections  other  than  those  in  the 
deed  excepted,  to  wit  :  a  railway  station  \vith  the  ap- 
pentenances  thereof,  including  water-closets  and  uri- 
nals." Of  course  this  was  nu)re  than  he  could  stand, 
and  he  Immediately  repaired  to  his  lawyer  and  com- 
menced an  action  against  Mr.  De  Crespigny  for  breach 
of  (ho  covenant  in  the  deed  as  to  erections.  The 
latter  re[)lied  that  Z*^'  had  not  built  the  railway  station  ; 
it  had  l)een  built  by  the  London  &  Brighton  Railway, 
which  company  had  compulsorily  [)urchased  the  })ad- 
dock  from  him  by  virtue  of  this  somewhat  despotic 
power  given  to  them  \)y  their  charter.  He  did  not 
want  to  part  "with  this  property  in  that  way,  and  was 
as  nuich  incensed  al)out  it  as  the  plaintiff,  but  the  law 
compelled  him  and  he  could  not  help  himself.  The 
Court  of  Queen's  Bench,  after  lu^aring  Mr.  De  Cres- 
pigny's  plea,  decided  that  it  was  a  good  defence,  and 
that  the  plaintilF  could  not  recover  anything.  It  was  a 
case  of  an  agreement  rendered  impossible  by  law  and 
for  failure  to  perform  it  there  could  be  no  liability. 
"The  substantial  (juestion,"  said  the  court,  "  is  whether 
the  defendant  is  discharged  from  his  covenant  by  the 
subsequent  act  of  parliament  which  put  it  out  of  his 


rEllFOUMAXCr.    OF   CONTIIACTS. 


113 


power  to  do  so.  Wo  tire  of  opinion  that  he  is  so  tlis- 
chiirged,  on  the  prineii)Ui  expressed  in  the  maxim,  lex 
non  co(jPt  ad  hnjjos.slbifia/'  ^ 


IMPOSSIBILITY  OF  PERFORMANCE. 


TAYLOR  V.  CAi^DWELL. 

[;?  Best  &  S.  .S2(;.] 

In  18()1,  Mr.  Cahhvell  agreed  to  let  Mr.  Taylor  have 
the  Surre}'^  Gardens  and  Mnsic  Hall  for  four  specified 
summer  nigiits,  on  which  Mr.  Taylor  proi)osed  to  en- 
tertain the  British  i)uhlic  with  hands,  ballets,  acquatic 
s[)orts,  fire-works,  and  other  festivities.  Unfortun- 
ately, before  these  summer  nights  arrived,  Mr.  Cald- 
welTs  premises  were  destroyed  by  an  accidental  fire. 
Mr.  Taylor  had  l)een  i)ut  to  great  exi)enso  in  jn-eparing 
for  his  entertainment,  and  he  submitted  that,  as  the 
contract  was  an  absolute  one,  Mr.  Caldwell  must  pay 
damages  for  the  breach.  It  was  held,  however,  that 
the  parties  nmst  be  taken  to  have  contracted  on  the 
basis  of  the  contiimed  existence  of  the  premises,  and, 
as  they  had  been  burnt  down  without  the  fault  of  either 
party,  both  })arties  were  excused. 

The  law  ap[)licab!e  to  such  cases  was  thus  summed 
in)  by  BLACKuruN,  J.  :  "  Then;  seems  to  be  no  doubt 
that  where  there   is   w  j)ositive  contract  to  do  a  thing 


'  The  liiw  docs  not  compel  a  iiiaii  to  perform  impossibilities. 


•*3ii; 


lU 


LEADIXG    CA=ES    SIMPLIKIEl). 


not  ill  itself  unlawful,  the  contractor  must  porforni  it 
or  pajMlaniauos  for  not  doing  it,  although  in  conse- 
quence of  unforeseen  accidents,  the  performance  of  his 
contract  has  become  niu^xpectedly  l)urthensome,  or 
even  iini)ossihJe.  I>ut  this  rule  is  only  ap[)lii'al>lc 
where  the  conti-.M't  is  positive  and  absolute,  and  not 
subject  to  m  .  i-btion,  either  express   or    im[)lic(l  ; 

and  there  arc  a...i,  ,,  Itics  which  establish  the  princii)le 
that  where,  f'om  the  nature  of  the  contract,  it  appears 
that  the  ])artios  n  '-t  1  •  the  beufinning  have  known 
that  it  coidd  not  be  fultiUcd,  unless  when  the  time  for 
the  fultilment  of  the  contract  arrived,  some  particular 
specified  thing  continued  to  exist,  so  that,  when  en- 
tering into  the  contract,  they  must  have  contemi)latcd 
sucli  continuin<>;  existence  as  the  foundation  of  what 
"was  to  be  done,  there  in  the  absence  of  any  exjjress  or 
implied  warranty  that  the  thing  shall  exist,  the  con- 
tract is  not  to  l)e  construed  as  a  [)ositive  contract,  but 
as  subject  to  an  im[)lied  condition  that  the  parties  shall 
be  excused,  in  case,  l)efore  breach,  performance  beconies 
impossible,  from  the  perishing  of  the  thing  without 
default  of  the  contractor." 


i 


Uf POSSIBILITY  BY  ACT  OF  GOD. 


KOIMNSOX  V.  DAVISOX. 

[L.  K.  (1  Kxch.  L'l;;).] 

An  eminent  jiianist,  known  professionally  as  Miss 
Arabella  Goddard,  was  the  wife  of  the  defendant  in 


PEUFOIIMAXCK    OF    COXTIt ACTS. 


ii; 


this  caso,  ^Iv.   Davison.     Mr.   Robinson,   whoso  l)nsi- 
ncss  was  that  of  a  concert   nianau'cr,  made  a  contract 
with   Mr.  Davison  that  his  wife    shonhl  perform  at  a 
concert  on  the   niijht   of  the    14th   of  Jannary,  1871, 
for  a  certain  sum  of  monov.     The  former  o-ot  cverv- 
thiiiij  ready  for  the  performance,  but  on  the  morning 
of  the   14th,   instead  of   Mrs.   Davison,  there  came  a 
letter  from  her,  sayinii"  tiiat  she  was  too  ill  to  attend 
the  concert,  and  incU)sing  a  medical  certitlcate  to  that 
elfect.     'Phis  did  not  suit  Mr.  Robinson,  at  all,  and  so 
he  bronirht  an  action  for  the  l)reacli  of  the  contract, 
l^ut  all  the  court  held  that  the  sickness,  if  real,  was  a 
oood  excuse.      "  This  is  a  contract,"  said  Baron  BKA.'\r- 
WKLL,  "to  perform  a  service  which  no  d(>i)uty  could 
[K'rform,  and    which,   in    case  of  death,  could  not  be 
performed  by  the  executors    of  the    deceased;  and  I 
am    of  opinion    that,    by  virtue    of  the    tcuMUs   of  the 
oriuinal   barirain,  incapacity  either  of  body,  or  mind, 
in  the  performer,  without  default  on  his  or  her  })art,  is 
an  excuse  for  non-performance.     Of  course,  the    par- 
ties miirht  expressly  contract  that   incapacity   should 
not  excuse,  and  thus  preclude  the  condition  of  health 
from  beiiiu  annexed    to  their  agreement.      Here  they 
have  not  done  so,  and  as  they  have  been  silent  on  that 
point,  the  contract  must,  in  my  judgment,  be  taken  to 
have    been    conditional,    and    not    absolute."      Baron 
Ci.EASHY  was  of  the  same   opinion.     Said  he:   "This 
is  a  contract  that  a  lady  should  perform  as  a  pianist ; 
that    is,  should    undertake    ;■,    duty  requiring   a    high 
degree  of  skill  and  taste,  and  one  which,  if  not   per- 
formed pro[)erly,  can  hardly  be  said  to  have  been  per- 
formed at  all.     It  is,  moreover,  ii  duty  which  could 
not  be  done  by  a  deputy,  but  only  by  the  lady  herself, 


IIG 


LEADIN(f    CASrvS    M.MI'MIIKD. 


and  that  being  so,  I  think  that  disabilitv^  or  inr.ipacity 
caused  by  tlie  act  of  God  excuses  the?  defendant.  The 
whole  contract  l)et\vcon  tlie  ])arties  was  based  upon  the 
assumption  by  both  tliat  the  performer  wouhl  continue 
hving  and  in  sufficient  health  to  play  on  the  day 
named.  This  was  really  the  very  foundation  of  the 
promise,  and  vvhen  the  foundation  fails  the  promise 
built  on  it  must  fail  also." 


DEAVEY  V.  UXIOX   SCHOOL  DISTRICT. 


I- 

•-31;: 


' 


[43  Mich.  480.] 

The  school  directors  of  a  town  i  i  Michigan  hired  a 
teacher  for  ten  months  ;it  a  salary  of  $130  a  month. 
He  had  no  more  than  entered  on  his  duties,  1)eforo  the 
small-pox  broke  out  in  the  neighborhood,  and  raged  to 
such  a  ffreat  extent  that  the  directors  did  the  onlv 
proper  thing  under  such  circumstances — they  closed 
the  school  until  the  epidemic  had  abated,  which  was 
something  like  three  months.  At  the  end  of  that 
time  the  school  was  re-opened.  The  schoolmaster  went 
back  to  his  work,  and  also  [)resented  a  little  bill  to  the 
board,  for  the  amount  of  his  salary  duriiiijc  his  enforced 
vacation.  But  the  directors  replied  (there  was  most 
likely  a  lawyer  on  the  board) :  "  The  act  of  God  made 
it  impossible  for  us  to  keep  the  school  open,  and  the 
law  books  say  that  the  act  of  God  will  excuse  the  faih 
lire  to  carry  out  a  contract."     The  schoolmaster  said 


PERrOIJMANCE    OF    CONTRACTS. 


117 


ho  Avould  SCO  about  tlisit,  :ui(l  striiiu'htway  sued  the 
directors.  The  defeiidiint's  hiw,  tlie  court  siiid,  was 
sound,  but,  for  ministers  ofpublicin.struct  ion,  their  mis- 
use of  words  was  horrible.  It  was  hot  "  inip()ssi])le  " 
to  keep  the  school  open  at  such  a  time  ;  it  was  simply 
*'  daui^crous."  The  act  was  not  one  of  absolute  neees- 
sity,  but  of  strong  exi)ediency.  Therefore,  they  did 
not  come  within  their  own  definition,  and  the  school- 
master must  have  his  monev. 


.:'.3 

■  * 


BENUXCIATIOX  BEFOUE    PERFOIUIAXCE   DUE 

GIVES  niaiir  to  sue. 


HOCHSTKIt   V.   I)i:  T.A  TOUR. 


[2  El.  &  HI.  t;78.] 

Mr.  De  La  Tour,  meditating  a  tour  on  the  continent, 
enj^aired  llochster  as  his  courier  at  £10  a  month,  the 
service  to  commence  on  June  1st.  Before  that  dav 
came,  however,  Mr.  De  La  Tour  altered  his  mind,  and 
told  llochster  he  should  not  want  him.  AVithout 
wasting  words  or  letting  the  grass  grow  under  his  feet, 
and  before  June  1st,  Hochster  issued  his  writ  in  an 
action  for  breach  of  contract.  For  De  La  Tour  it  was 
arirued  that  Hochster  should  have  waited  till  Juno  1st 
before  briuirinir  his  action,  for  that  the  contract  could 
not  be  considered  to  be  broken  till  then.      It  was  held, 


118 


LKA1)IN(}    CASKS    SIMI'LIFIKD. 


however,  that  the  eoiitnict  li:ul  Ix'cii  siiffieieiilly  l)r()l<oii 
by  Do  La  'I'our's  sayinji;  (h'lliiitely  that  he  venouiu'cd 
the  airi'eenu'iit.  "Where  there  is  a  contract,"  said 
the  court,  "  to  (h>  an  act  on  a  future  day,  there  is  a 
rehition  constituted  Ix'tween  the  parties  in  the  mean- 
time l)y  the  contract,  and  they  impliedly  promise  tlnit  in 
the  meantime  neither  will  do  anything  to  the  prejudice 
of  till"  other  incf)nsistent  with  that  relation.  As  an  ex  ■ 
ann)le,a  man  and  a  woman  eniraixed  to  nKirrv,ar(!  afTi- 
nnced  to  one  another  duringtheperifxl  between  the  time 
of  th(>  engagement  and  the  celebration  of  the  marriage. 
In  this  very  case  of  traveller  and  courier,  fromtlio  day 
of  hirini;  to  the  davthe  emplovment  was  to  bcirin,  thev 
were  engaged  to  each  other;  and  it  seems  to  be  a 
l)r(>ach  of  an  implied  contract  if  either  of  theiu  re- 
nounces his  euiraiijement." 


^iSii' 


I-/ 
•'•,1' 

"••Si.' 


FROST  V.  KXIGHT. 


[L.  H.  7  Kxch.  114.] 


i\Ir.  Knight  promised  his  sweetheart  that,  though  he 
could  not  marry  her  at  once,  he  would  do  so  the 
moment  his  father  died.  Soon  after  he  repented  of 
his  promise,  and  in  the  lifetime  of  his  father,  told  her 
frankly  that  he  took  back  what  ho  had  said,  and 
Would  never  marry  her.  Instantly,  without  waiting 
for  the  old  gentleman's  death,  she  went  to  law  and 
recovered,  too.     "The  promisee,"  said  Chief  Justice 


PKIU'OK.MANCK    Ol'    CONTHACTS. 


11J> 


CocKiuruN,  "  hiis  ill!  inchoiitc  right  to  the  port'onnunco 
of  the  l):irg!iin,  wlilch  becoines  compli'to  whoii  tho 
time  for  [X'l-roriuiuu'o  arrives.  In  tlie  nu'untiiiK^  ho 
hus  a  right  to  have  tho  eoiitract  ke[)t  open  as  a  sub- 
sisting and  ellective  eontraot.  Its  unimpaired  and  un- 
inipeaehed  efHeaey  may  be>essential  to  his  interests." 


COXSTJtUCTIOX  OF  CONTHACTS. 


ROK  V.   TUAX3IAR. 


rWilU's  CliL';  L'  Smith's  Ld.  ('as.  44-4.] 


A  deed  bade  fair  to  beeome  void  altogether  as  pur- 
porting to  grant  a  freehold  hi  futuro  —  a  thing  which 
the  law  does  not  allow.  It  was  saved,  however,  from 
tliis  untimely  fate  by  tho  merciful  construction  that, 
though  void  as  what  it  purported  to  be,  it  might  yet 
avail  as  a  covenant  to  stand  seised,  tho  court  citing 
the  maxim,  beiiirfue  faciewlce  sunt  i titer pretatlones 
chartanim,  lit  res  magis  va/eat  qiiam  pereat,  which 
means  that  instruments  ought  to  be  construed  leniently 
with  all  allowances  for  the  ignorance  of  people  who  are 
not  lawyers,  in  order  that,  if  possible,  tho  transaction 
may  be  supported. 


120 


LEADING    CASKS    SIMrLIFIKD. 


nnEAriT  or  rffn}rrsr:  or  maruiage. 


•"J 


WUIGIIT>IA\   V.    COATKS. 

[1j  Mass.  I  ;  s  Am.  Doc.  77.] 

Miss  Miiria  Wright miin  compliiiiK'd  th:it  .losliua 
Coiitcs  had  brokoii  his  proiniso  to  make  her  Mrs.  Coatcs, 
and  had  married  somebody  else.  For  this  she  asked 
dainajres  in  a  Massachusetts  court.  There  was  no  ex- 
press promise  on  Joshua's  part,  hut  there  were  a  num- 
ber of  nice  letters,  which  she  produced  in  court,  all 
written  b\  him,  in  which  he  called  jier  his  dear  IMaria, 
and  besides,  had  he  not  taken  her  to  siuiiiuLj-school  tor 
two  years,  and  always  si)ent  at  least  two  other 
eveniuirs  a  week  in  her  company?  Joshua's  lawyer, 
hoAvever,  was  not  satistied.  In  the  Hrst  [)lace  ho  object- 
ed that  actions  of  this  kind  ou'jlit  to  be  diseouracjed  by 
the  courts,  who  should  refuse  to  listen  to  complaints 
of  this  chiiracter,  and  this  objection  beinij^  overruled 
(for  said  the  court,  "Wo  can  conceivo  of  no  more 
suitable  ground  of  ap[)li('ation  to  the  tribunals  of  jus- 
tice for  compensation,  than  that  of  a  violated  promise 
to  enter  into  a  contract  on  the  faithful  performance  of 
which  the  interest  of  all  civilized  countries  so  essen- 
tially depends  "),  he  fell  ])ack  on  the  further  objection 
that,  as  Maria  had  not  shown  an  express  promise  by 
Joshua,  she  could  not  succeed.  But  here  ho  was  over- 
ruled again.  "  That  young  peo})lo  of  dillerent  sexes," 
said  Chief  Justice  Parkku,  "  instead  of  having  their 
mututd  engagement  inferred  from  a  course  of  devoted 


PKni'Oini.\\(  K    OF    CONTKACTS. 


121 


attention,  .'uul  appiu'cntly  exclusive  attaclnnonl,  wliicli 
is  now  tho  coninioii  evidonco,  should  ho  obliged,  Ixd'ore 
tlioy  considered  llieinselves  Ixu.'.il.  to  I'all  witnesses 
or  (ixecnte  instruments  under  lian<l  a  id  seal,  would  bo 
(lestrurtivo  of  thai  chaste  and  modest  intercourse 
which  is  tho  pritU;  of  our  country,  and  a  boldness  of 
manners  would  probably  succeed,  by  no  means  friendly 
to  the  (character  of  the  sex  or  tho  interests  of  society." 


ATCHINSOV  V.    li.VKER. 


[Peak.  Ad.  Cas.  10:?.] 


!Mrs.  Baker  was  a  rich  wi<l()w  ;  fair,  fat,  forty,  and 
in  every  way  calcnlatecl  to  crown  tho  felicity  of  a  man 
of  nioderate  tastes.  She  yielded  to  tho  persuasions  of 
Mr.  Atchinson,  a  widower  of  tho  same  ago,  and  })rom- 
isod  to  niarry  him.  At  the  time  of  tho  promise,  Mr. 
Atchinson  had  all  tho  a[)i)earanco  of  l)eing,  and  no 
doubt  was,  a  sound,  healthy,  ca[)al)lo  man,  and  the 
Avidow  congratulated  hei'solf  on  ]ier  a[>proaching  nup- 
tial l)liss.  But  before  the  ha[)py  day  came,  she  was 
disgusted  to  find  —  so  she  said — that  her  lover  had 
an  abscess  on  his  breast ;  and  immediately  the  fever 
loft  her.  She  vowed  she  would  never  link  herself  to  a 
putrid  mass  of  corrupting  humanity.  Mr.  Atchinson 
])r()Ught  an  action  for  breach  of  i)romiso,  and  tho  trial 
elicited  some  valuable  remarks  from  Lord  Kkxyon  : 
*'  If  tho  condition  of  tho  parties  is  changed  after  the 


122 


LEADING    CASES    SIMPLiriP:D. 


time  of  milking  the  contract,  it  is  ;i  good  cause  for 
either  party  to  break  off  the  connection  LortI  Maxs- 
FiELD  lias  held  that  if,  after  a  man  has  made  a  contract 
of  niarriaue,  the  Avoman's  character  turns  out  to  be 
different  from  what  he  had  reason  to  think  it  was,  he 
may  refuse  to  marry  her  without  being  liable  to  an  ac- 
tion, and  whether  the  infirmity  is  bodily  or  mental, 
the  reason  is  the  same  ;  it  would  be  most  mischievous 
to  compel  parties  to  marry  who  can  never  live  happily 
together." 


A  A 


WILLARD  V.    STONE. 

[7  Cow.  22;  17  Am.  Dec.  496.] 

Miss  Willard  had  the  same  kind  of  trouble  with  Mr. 
Stone  that  Maria  Wrightmau  had  with  Joshua  Coates. 
AVlieu  she  got  him  into  court  he  did  not  deny  that  he 
had  promised  to  marry  her ;  but,  said  he,  '■' AVhen  I 
gov  back  from  a  journey  out  West,  everybody  said  tiiat 
a  fellow  l)y  the  name  of  Frink  had  cut  me  out  wliiie  I 
was  awav,  and  this  was  the  reason  I  broke  oft' the  en- 
gairement."  "  We  cannot  list(>n  to  evidence  like  that," 
the  <'ourt  replied,  "  for  Miss  Willard  was  not  respon- 
sible for  whatever  Danu»  Rumor  might  say."  "  But 
ouixlit  I  not  to  l)e  allowvj.l  to  prove  that  after  our  engage- 
ment  was  l)rok('n  off  she  used  to  take  long  walks  at  night 
with  Frink,  and  was  often  guilty  of  very  gross  and 
mdecent  familiarities  with  him."  "  Certainly,"  said 
the  court,  "  evidence  of  what  kind  of  a  character  the 


I'ERrORMAXCE    OF    CONTRACTS. 


123 


female  complaining  is,  is  always  admissil)le  in  actionb 
of  this  kind.  The  ohjeet  of  those  actions  is  not  merely 
a  compensati(ni  for  the  immediate  injury  received,  but 
damages  for  loss  of  reputation.  This,  of  course,  must 
depend  on  her  general  character  both  before  and  after 
the  l)reacli  of  promise."  And  ]\Iiss  Willard,  on  account 
of  these  little  indiscretions,  lost  her  case. 


■  3 


^.V  ENTIRE   CONTRACT  CANNOT 

TIONED. 


BE    APPOR- 


CUTTER  V.  POWELL. 


[G  ToriA  lU'p.  IJi'O:  '1  Smith's  Ld.  Cas.  18.] 

The  defendant  liad  a  ship  which  was  a])out  to  sail 
from  »Tamaica  to  England,  and  wanted  a  second-mate. 
In  answer  to  an  advertisement  a  suitable  person  pre- 
sented himself  in  the  shape  of  ]Mr.  T.  Cutter,  and  the 
defendant  gave  him  a  note  to  this  effect :  — 

"  Ten  daA's  after  the  ship.  Governor  Parry,  myself 
master,  arrives  at  Liverjjool  I  promise  to  pay  to  Mr. 
T.  Cutter  tlie  sum  of  30  guineas,  [)rovided  he  proceeds, 
continues,  and  does  his  duty  as  second-mate  in  the  said 
ship  from  hence  to  the  port  of  Liverpool." 

The  ship  set  sail  on  July  31st,  and  arrived  at  Liver- 
pool on  October  11th.     But   life  is   very  uncertam  ; 


124 


LEADING    CASKS    SIMPLIFIKD. 


!"■■" 

'•31,, .. 


and  on  the  voyaue  Mr.  T.  Cutter  exclKinirod  the  bil- 
lows of  time  for  the  haven  of  eternity.  He  had  gon  • 
on  l)0!ird  on  July  31st,  and  had  performed  his  duty 
faithfully  and  well  up  to  the  time  of  his  death,  whieh 
oceurred  on  September  20tli, — that  is  to  say,  when 
more  than  two-thirds  of  the  passage  were  aecom- 
jjlished. 

If  on  these  faets  the  unso|)histi('ated  but  thoughtful 
student  were  asked  wiiether  jNIr.  T.  Cutte.  >  family 
would  l)e  entitled  to  see  anything  of  the  30  guineas, 
the  probaliilities  are  that  he  would  reply,  "  Certainly  ; 
thev  might  not  be  able  to  get  the  "wlioh;  30  guineas, 
biit  I  supi)ose  they  would  get  something  for  the  man's 
serviee  froiU'July  31st  to  the  tiux;  of  his  d(>ath."  In 
this  oi)ini()U  the  unso[)hisli('ated  but  thoughtful  stu- 
dent would  1)0  wrong.  "  In  this  ease,"  said  one  of 
the  judges,  "  the  agreement  is  eonelusive  ;  the  defen- 
dant only  engaged  to  pay  the  intestate  on  condition  of 
his  continuiuiT  to  do  his  dutv  on  board  durinii;  the 
whole  voyage,  and  the  latter  was  to  bo  entitled  either 
to  30  guineas  or  nothing  ;  for  sueh  was  the  agreement 
between  the  parties."  Said  another  of  the  judg(>s  : 
'  This  is  a  written  contract  and  it  speaks  for  itself. 
And  as  it  is  entire,  and  as  the  defendant's  promise  de- 
pends on  a  condition  precedent  to  bo  pert'ormed  by  the 
other  party,  the  condition  nnist  bo  performed  before 
the  other  party  is  entitled  to  receive  anything  under 
it.-'i 


'  TIic  cdurtH  at  ilit;  present  day  seem  to  rejiard  the  rule  in 
Cutter  V.  Powell  as  a  lianl  one,  and  rather  favor  ixTiniltinLC  the 
party  who  has  not  wholly  completed  thu  entire  contract  to  recover 
for  what  ho  has  done  (especially  where  the  otlier  party  retains  the 
bcnellt),  less  the  dama;:e  sustained  by  the  latter  by  reason  of  the 


PERFOUMANCE  OF  CONTRACTS. 


125 


MEASUBE  OF  DAMAGES  ON  BREACH  OF 
coy  TRACT. 


HAI>T^EY  V.    I?AXEXr>AI.E. 


[9  Exch.  3-11. J 

Hiulley  &  Co.  were  owners  of  ji  steam-mill  Jit  Glou- 
cester. It  happened  that  the  shaft  of  the  engine  broke, 
and  they  gave  it  to  the  defendant,  a  carrier,  to  take  to 
an  engineer  at  Green wieh  to  serve  as  a  pattern  for  a 
new  one  ;  the  defendant's  clerk  being  informed  that 
the  mill  was  stopped,  and  that  the  shaft  must  be  deliv- 
ered immediately.  But  through  the  negligence  of  the 
defendant  the  shaft  was  not  delivered  promptly,  and 
in  conseciuence  Hadley  &  Co.  did  Jiot  get  the  new 
shaft  until  several  days  idler  they  otherwise  would 
have  done,  the  mill  in  the  meantime  remaining  silent 
and  idle,  to  the  pecuniary  loss  of  the  proprietors. 
For  the  loss  of  the  i)rofits  which  they  would  h;i ve  made 
if  the  new  shaft  had  come  to  them  when  they  ex[)ected 
it,  Iladley  &  Co.  l)rought  an  action,  and  the  question 
was  whether  the  damages  were  too  remote.  The 
court  held  that  i'  the  carrier  had  been  made  aware  that 


n'5 

■  3 


partial  UiifuKUment  of  tho  contract.  Thus,  in  a  recent  case  where 
I),  hired  15.  to  work  for  him  for  seven  months  at  §15  per  month,  and 
H.  woiked  only  llfty-nine  days  and  then  (piit  without  any  {lood 
excuse,  it  was,  nevertheless,  held  that  13.  niitrht  recover  from 
D.  the  sum  tliat  his  fifty-nino  days'  work  was  worth,  deducting  the 
damafre  to  D.  from  his  breach  of  contract.  Duncan  v.  Baker,  21 
Kas.  !»!), 


4 

1  ji 


12G 


LEADING    CASES    SIMPLIFIED. 


fo,t' 

"511''. 
'-3' I.' 


a  loss  of  profits  would  result  IVoni  delay  on  his  p:irt, 
ho  would  have  beeu  answonihlo.  But  it  did  not  a[)- 
pear  that  he  knew  that  the  want  of  the  shaft  Avas  the 
only  tiiinij  which  was  keei)inii'  the  mill  idle,  and  there- 
fore  he  could  not  he  liable  for  the  loss  of  i)rorits. 

Iladleii  V.  Baxendale  is  justly  ro<rarded  as  the  lead- 
ins:  case  on  the  subject  of  daniaires  arisinu*  from  a 
l)reach  of  contract.  It  lays  down  the  three  followinu' 
rules : 

1.  Damaixes  which  may  I'airly  be  considered  as  nat- 
urally arising  from  the  breach  of  contract,  aecording  to 
the  usual  course  of  thinirs,  are  recoyerable. 

2.  Damaircs,  not  arising  naturally, but  from  circum- 
stances i)eculiar  to  the  special  case,  are  not  recoyer- 
able unless  the  s[)ecial  circumstances  are  known  to  the 
person  who  has  l)roken  the  contract. 

3.  Where  the  special  circumstances  are  known  to 
the  person  who  breaks,  and  the  damage  complained  of 
flows  naturally  from  the  breach  of,  the  contract  under 
those  special  circumstances,  such  special  damage  is 
recoverable. 


PENALTIES  AND  LfQl^FDATED  DAMAGES. 


KEMBT^K  V.  FAHUEX. 


[(I  Biiij;.  Ul.] 


Courts    are    very    averse    to    enforcing:  exorbitant 
agreements  us  to  damages  which  parties  sometimes  in- 


PERFORMANCE    OF    CONTRACTS. 


127 


ti'odiice  into  llioir  contructs  for  a  violation  of  their  pro- 
visions.    Something  more  tlitin  h:ilt  a  century  iiijo  iin 
iictor  and  a  manai'er  sat  down  and  made  an  aixreement. 
The  actor   on  his  ])art  undertook  to  act  as  principal 
comedian  at  the    manager's  tlieatrc  (Covent  Garden) 
for  four  seasons,  and  in  all  things  to  conform  to   the 
regulations  of  the  theatre  ;  while  the  manager  agreed 
to  i):iy  the  actor  £.")  (J.s*  <S^?.  a  night,  and  to  allow  him  a 
Itenelit  once  every  season.     And   the  aureement   con- 
tiiined  tlu;  clause,  "  thtit  i'f  either  of  the  parties  should 
neglect  or  refus(»  to  fullil  the  said  agreenuiiit,  oi'  any 
part  i/if'ren/\  or  (tn//  slipnlafioii  therehi  contained,  such 
pai't y  should  pay  to  tiie  other  the  sum  of  £1,000,  to 
which  sum   it    was  thereby  agreed   that  the  damages 
sustained    l»v  anv  such  omission,  neiilect    or    refusal 
should  amount  ;  and  which  sum  was  thereby  declared 
by   the  said  i)arties   to  he  liquidated  and  ascertained 
dani(Kje,s,  and  not  a  pvnalti/  or  penal  sum,  or  in    the 
nature  tliereof.""      For  some  reason  or  other  —  it  does 
not  matter  what  —  during  the  second  season  the  actor 
refused   to  ai!t,  and  tlie  manager  now  went  to  law  to 
recover  the  whole  £1,000  mentioned  in  the  agreement, 
although  he  was  cjuite  i)repared  to  admit   that  he  had 
not   sustained  damage  to  a  greater  extent  than  £7r)0. 
The  manager,  however,  did  not  succeed.     "  That  a 
very  large  sum,"  saidTiNDALL,  C.  J.,  "should  become 
immediately  i)ayable    in   consecjuence  of  the  non-i)ay- 
ment  of  a  very  small  sum,  and  that  the  former  should 
not  be  considered  a  penalt}',  a[)pears  to  be  a  contradic- 
tion in  terms  ;  the  case  being  precisely  that  in  which 
courts  of  equity  have  always  relieved,  and  against  which 
courts  of  law  have  in  modern  times  endeavored  to  re- 


I 


128 


LEADIN(}    CA.SKS    SI.MrHFIKD. 


lieve,  by  dlrectinj^  juries  to  assess  the  real  damages 
ijustainod  by  the  breach  of  the  agreenioiit."  xViid  so 
the  manasrcr  had  to  l)e  content  with  £750. 


FRA  UD  ULEXT   COXVE  Y^iXCES. 


TWYNE'S   CASE. 


[3  Coke,  80;   1  Smith's  Ld.  Cas.  3:$.] 

A  farmer  named  Pierce  got  deeply  into  debt ;  and 
amongst  his  creditors  were  two  persons  named  Twyne 
and  Grasper  ;  to  the  former  he  owed  £400,  and  to  the 
hitter  £200.  After  repeatedly  dunning  the  farmer  in 
vain,  Grasper  decided  to  go  to  law  for  his  money,  and 
had  a  writ  issued.  As  soon  as  Pierce  heard  of  this, 
he  took  the  other  creditor,  Twyne,  into  his  contidence, 
and  in  satisfaction  of  the  debt  of  £400  made  a  secret 
conveyance  to  him  of  everything  he  had.  In  spite  of 
this  deed,  however,  —  in  pursuance  of  the  nefarious 
ai'ranu'cment  ])ctween  tiieni,  —  Pierce  continued  in 
possession  just  as  if  he  had  never  made  it.  lie  sold 
some  of  the  goods,  sheared  and  marked  some  of  the 
sheei),  and  in  every  way  acted  as  if  he  were  tiie  mon- 
arch of  all  he  surveved,  and  Twvne  had  nothinijr  to  do 
with  it.  ^Meanwhile  Grasper  went  on  quietly  with  his 
action,  got  judgment,  and  consequently  the  assistance 
of  the  sherirt'of  Southampton,  who  a[)peared  one  day  ut 


rEHFOUMANCE    OF    COXTUACTS. 


129 


tlic  homcstoad  with  the  Intoiition  of  currviiiii-  ofl'  In  Mr. 
(,ir:isi)i>r's  iiitcivst  wliatcwr  ho  might  c'h.'inco  to  find 
tluTo.  This  proceeding  Twvne,  who  snddenly  :ip- 
l)o:u'ed  on  tlu;  scene,  sti'ongly  objected  to,  for,  suid 
lie,  "  everything  on  tiiis  fiinn  l)elon«>-.s  to  rue,  not  to 
Pierce,"  mid  in  [)ro()f  of  his  assertion,  he  produced  the 
deed  of  conveyance. 

The  qnestioii  then  wa.s  whether  this  deed  of  convey- 
ance was  void  within  the  meaning  of  an  act  of  Parlia- 
ment called  the  l.'lth  Klizaheth  (from  being  passed  in 
the  thirteenth  year  of  the  reign  of  thai,  [)ublic-spirited 
queen),  which  [)rovi(led  that  all  gifts  and  conveyances, 
whether  of  lands  or  chattels,  made  for  the  purpose  of  de- 
laviui::  <>i"  defrauding  creditors,  shall  be  void  as  aLrainst 
such  creditors  unless  made  ui)on;i  valual)]ec<)nsi(lerati()n 
and  bona  Ji (If  to  some  person  not  having  notice  of  the 
fraud.  It  was  pretty  clear  that  Farmer  Pierce's  gift 
was  for  a  valuable  consideration  ;  but  it  was  not  bona 
Jiilc,  and  Iherelore  it  was  within  the  statute,  said  the 
court,  for  tlie  following  six  reasons  : 

1.  It  was  impossil)le  that  anybody  could  really 
1)0  so  generous  as  Farmer  Pierce  had  i)ro[)osed  to  be. 
lie  had  given  awav  evervthing  he  had  in  the  world, 
even  down  to  tin;  boots  he  was  wearing.  Such  self- 
denial  could  oidy  be  the  cloak  of  fraud. 

2.  In  spite  of  his  ap[)arent  liberality  Farmer 
Pierce  did  not  let  one  of  the  thinu's  no,  but  "  con- 
tinned  in  i)os.session,  and  by  reason  thereof  he  traded 
and  IratKcked  with  others  and  defrauded  and  deceived 
them." 

3.  The  conveyauco  was  made  in  secret.  This 
WHS  a  very  suspicious  circumstance.     If  there  was  no 


s 


i 


ffm 


130 


LEADIXO    CASKS    SIMPLIFIED. 


fraud  why  was  there  so  much  mystery  about  it?     Why 
was  not  it  done  o[)enly? 

4.  It  was  made  wlieu  (rrasper  had  already  com- 
menced an  aotioii  and  evidently  meant  l)usine.ss, 

5.  There  was  a  trust  between  the  parties,  and 
**  trust  is  the  cover  of  fraud." 

().  The  deed  alleged  that  the  gift  was  made  "hon- 
estly, truly  and  hona  Ji(h',''  and  that  was  a  very  sus- 
pici(His  circumstance  in  itself. 


liECOVEUY  OF  MOXEY  PAID  UNDER 
MISTAKE. 


3LVr^KIOTT   V.   HA3IPTOX. 

[7  Terin  Kep.  2(!;) ;  2  Smith's  Ld.  C:is.  3!)3.] 

This  case  should  impress  the  student  with  the  wis- 
dom of  taking  care  of  the  recei[)t  on  those  rare  occa- 
sions when  he  pays  his  tailor's  bill.  Hampton, 
possibly,  was  not  a  tailor ;  but  he  was  no  doubt  a 
tradesman  of  some  sort,  and  in  the  course  of  his  trade 
sold  goods  to  Marriott.  These  ^Marriott  duly  paid  for 
and  obtained  a  receipt.  But,  instead  of  carefully  put- 
ting it  where  he  could  find  it  if  he  wanted  it,  ho  put  it 
where  he  could  not  find  it.  By-and-by  Hampton,  —  re- 
lying, it  may  be,  on  his  knowledge  of  Marriott's  care- 


w 


I'EUFOHMAXCK    OF    CONTILVCTS. 


131 


loss  pfciitlenianly  hiil)its, — scMit  in  his  bill  iiiruin  with 
tho  air  of  a  loiij^-siifroring  and  ill-nsed  creditor.  Mar- 
riott had  a  distinct  recollection  of  having  paid  for  the 
trousers,  and  stiid  so.  ILun[)ton,  however,  challenged 
him  to  show  pa[)er,  and  though  Marriott  looked  high  and 
low  for  the  document,  it  could  not  be  found,  and,  as 
IIami)ton  bronght  an  action,  he  was  obliged  to  pay 
over  ana  in. 

v.. 

But  it  came  to  pass  that  after  a  while  the  missing 
receipt  turned  up,  and  ^larriott  carried  it  in  trium[)h 
to  Hampton's  shop.  "Yes,"  said  that  respectal)lo 
tradesman,  "  it  seems  rii>ht  cn()U2;h,  I  own  ;  1)ut  excuse 
me  if  r  sa}'  that  I  have  got  the  mone}',  and  I  intend  to 
stick  to  it."  ^Marriott  now  went  to  law  to  force  him 
to  re[)ay  the  money,  but  the  student  will  bo  grieved 
to  hear  that  his  elVorts  were  not  crowned  with  tho  suc- 
cess he  deserved.  Interest  reipuhUcce  xt  sit  finis  Jifitim. 
It  is  tho  interest  of  tho  state  that  litigation  should 
cease,  is  an  old  maxim  of  tho  law  ;  and  all  the  judges 
agreed  that  law  suits  lunst  stop  somewhere.  Said  Lord 
Kewox,  C.  J.  :  "  If  this  action  could  bo  maintained  I 
know  not  what  cause  of  action  could  ever  bo  at  rest. 
After  a  recovery  by  process  of  law  there  must  be  an  end 
of  litigation,  otherwise  there  would  be  no  security  for 
any  person."  ^ 


'  So,  if  ii  man  pays  ovoi-  money  with  a  full  knowleds^e  of  the 
facts,  bnt  mistaking  the  law  of  the  case,  he  cannot  recover  it  back. 
A  sea  captain  once  on  a  time  made  a  blunder  of  this  sort.  He  had 
brought  home  in  his  ship  a  larjie  quantity  of  treasure,  a  part  of 
which  he  jxave  to  a  certain  admiral  under  whose  convoy  he  had 
sailed,  not  at  all  in  a  spirit  of  gratitude,  bnt  believing  that  he  was 
bound  by  law  to  pay  it.  By-and-by  lie  discovered  that  the  law  did 
not  compel  him  to  do  anything  of  the  kind,  and  he  brought  an  ac- 
tion to  get  it  back,  but  did  not  succeed.    But  if  the  mistake  is  cue 


1 


ir,2 


LEAUIMJ    CASKS    snil'LIFIKD. 


yriT.  — Salks. 


WIIEX  SALE  COMPLETE,  PI?OPERTY  FA^.SES 

AT  OXCE. 


TAI{l.f\<T   V.   !JV\Ti:iJ. 


i\ 


M  V 


••id 

If  ■;••—•' 

If:  ^ 


"Si 


1 


:i  . 


I 


[li  JJtini.  >>c,  C'lX's.s.  olio.] 

On  January  4,  1S2"),  it  was  in  writiiisr  airrocd  bo- 
twccn  ^Ir.  Baxter,  and  Mr.  Tarlinu',  that  tlio  lornier 
should  sell  to  the  latter  a  stack  of  hay,  then  standing  in 
his  field,  at  the  ])ri('o  of  I'll-").  Payment  Avas  to  be 
made  on  Fehruar}'  4tli,l)Ut  the  stack  \vas  to  be  allowed 
to  remain  where  it  was  till  ]May-day.  It  was  not  to  ])c 
cut  till  paid  for.  This  was  held  to  be  an  immediate, 
not  a  prospective,  sale,  so  that  Avhen  on  January  20th 
the  stack  was  accidentally  l)urnt  down,  the  loss  fell  on 
Tarlini;,  the  bu^'er.  "  The  rule  of  law,"  said  Bayley, 
J.,   <' is   that  where  there  is  an   immediate  sale,  and 


of  fact  it  is  different.  Mr.  Wlioadon  found  out  to  liis  firatillcation 
tliiit  tliis  was  .so,  after  a  i)assau;(;  at  law  with  Mr.  Olds.  Tlie  former 
hadl)oui;litalotof  wheat  of  Olds,  the  (iuautltyl»eiu,L; estimated  by  the 
size  of  another  pile  whieh  l)oth  supposed  to  eontain  a  certain  num 
bcr  of  bushels,  but  whieh  sul)se(|Ui'ntly  was  diseovered  to  eontam 
only  that  number  of  half  l)uslu!ls.  This  beiu^a  mistalic  of  fact,  Mr. 
Wheadon  succeeded  in  recoyerinjj  the  excess  payment.  Wlieadou 
V.  Olds,  20  Wend.  175. 


NALKS. 


133 


nothiiii;  voniiilns  to  be  doiio  by  tlin  vendor  as  between 
him  luul  tho  vendee,  tlie  i)r()[)erty  in  the  tiling  .sold 
vests  in  tlio  vendee,  and  llien  all  tlio  consequences  re- 
sulting iVoni  the  vesting  of  the  pr()[)erty  follow,  one  of 
which  is  that,  if  it  be  destroyed,  the  loss  falls  on  the 
vendee." 


UXLESS  SOMETIIIXa  REMAINS  TO  BE  DONE. 


3 


GIBBS   V.  BENJAMIN. 


[■l.->  Vt.  1J4.] 

On  the  edge  of  Mr.  Giljbs'  farm,  on  Lake  Champlain, 
there  was  a  quantity  of  wood  cut  and  piled,  which 
Mr.  Benjamin  agreed  to  purchase  at  $3.r)()  a  cord.  It 
was  part  of  the  contract  that  the  parties  should  meet 
and  ascertain  the  quantity.  Tliis  they  ditl  a  day  or 
two  later,  but  thev  had  scareelv  commenced  the  meas- 
urinir  1)efore  thev  disa<;reed  ou  tho  method  of  doinii:;  it. 
This  issue  grew  into  a  controversv  "vvhich  was  not  set- 
tled when  a  Hood  came  along  and  carried  the  whole  of 
the  Avood  into  the  lake.  Tlu-n  Gil)bs  sued  Benjamin 
for  the  price,  claiming  that  tho  latter  having  previously 
bought  the  wood  must  stand  tho  loss.  But  tho  court 
decided  that  tho  property  had  never  passed  to  Bejanun 
and  that  he  was,  therefore,  not  liable  for  the  i)rice. 
"  The  prin.cipie  is  well  settled,  and  uniform   in  all  the 


184 


LKADINO    CASKS    SIMPLiri  KD  . 


oasos,"  stiid  Hkdfikld,  .1.,  "  that  when  anything  re- 
mains to  be  done  hy  eitlier  or  hotii  parties,  preeedent 
to  tlio  delivery,  tlu!  titl(^  does  not  pass.  And  so  hi- 
lU'xihle  is  tlie  rule  that  wlien  the  property  has  been 
(h'hvered,  if  anvt liinu:  remains  to  l)e  (h)ne  l»v  the  terms 
of  the  contraet  before  the  sale  is  eomplete,  the  prop- 
erty still  remains  in  tho  vendor.  The  contract  must 
ho  exrcufc'l  to  ellect  a  completed  sale,  and  nothing  fur- 
ther to  be  done  to  ascertain  the  (jiiality,  (juantily,  or 
value  of  the  pi-oju-rty.  The  ireneral  ruh'  in  relation  to 
the  sale  of  jjersonal  property  is,  that  if  anything  re- 
mains to  be  done  b^  the  seller  belbro  delivery,  no 
property  passes  to  the  vendee,  ev(Mi  as  between  the 
[)arties.  This  rnh;.  of  law,  applied  to  llu^  facts  as  re- 
ported in  this  case,  retains  tln^  pi'oix'i'ty  in  the  wood 
in  the  plaintill",  and  leaves  the  contract  executory  and 
as  a  sale  incomplete." 


WAlillAyTTES. 


CHANDEI.OR   v.  T.OPUS. 

[-'  Ciu.  2;   1  Smith's  U\.  Cas.  2;i8,] 

In  the  days  when  superstition  was  rife  —  for  it  was 
half  a  century  before  Sir  Matthew  Hale  began  to  burn 
witches —  it  was  generally  thought  that  a  bezoar  stone 


.SALKS. 


135 


wiis  ii  eliiirm  Jiiiraiiist  most  of  tin;  ills  of  lifo;  mikI  siu^h 
stones  ii('('()r(liiii;jy  l)roiiirht  l>i_u'  prices.  ]Mr.  L()[)us 
liiid  ii  j)iir(]()n!il>l(.!  (losiro  to  Ix!  t'xcmpt  from  mh  many  of 
the  ills  of  lifo  as  possililc,  inid  went  to  Ciiaiidi'lor's 
slioj) — Cli!iii(U'Ior  was  a  jeweller  —  and  paid  £100  for 
a  stono  that  tlu;  tradesman  distinctly  told  him  was  a 
hezoar.  Mi".  Lopns  went  away  u  hai)py  man,  l»nt  after 
a  short  titne,  findinLj  he  was  not  so  free  iVom  the  ills 
ji»l'  life  as  lu!  ex[)eeted  to  l)(>,  his  suspitiions  were 
aroused.  Ho  made  inquiries,  and  discovered  that  his 
fancied  treasure  was  not  a  hezoar  at  all,  and  was 
decidedly  fitter  for  inendini:"  tlu!  hiirliway  than  for 
curini;  anvl)od\ 's  neural<>:ia. 


Undei"  these  eireumstances,  Loi)us  went  to  law 


with 


the  jeweller  who  liad  sold  him  the  stone.  But  ho 
failed,  lor  ho  was  unalih;  to  ji'ivo  satisfactory  answers 
to  two  questions  which  tho  jud«i('s  put  to  him,  viz.  :  — 

1 .  Did  Cliiindclor  wwniwv  Ihln  slonc  (o  he  a  Ix'zoar? 
"No,"   repliecl  Lopus,  gloomily,   "I  can't  say  ho 

exactly  warranted  it.  But  he  eortaiidy  f<aid  it  was  a 
hezoar.'" 

"Very  likely,"  said   tho   court,  "but  faying   isn't 
loarranting.     You  cannot  recover  in  contract." 

2.  Did  C/tande/or,  when  lie  told  yon  that  it  was 
bezoar,  know  that  it  was  not? 


a 


How  on  earth  can  I  tell,"  replied  Loi)us,  "  what 


tho  irin  knew,  or  did  not  know? 


Ihei 


said  tho  court,  "  neither  ei 


Hi  you  recover 


in  tort. 


Tho  probabilities  are,  that  if  Lopus  had  been  a  liti- 
gaii  of  to-day,  ho  would  have  succeeded  on  both 
points.  He  would  have  hit  the  jeweller  in  contract 
because  "  (jvery  affirmation  at  the  time  of  tho  sale  of 


l.'}() 


LEADING    CASKS    SIMl'LIKIKU. 


n.  personal  chattel  U  n  warrant'/ ii^  it  ai)[)oars  to  hav^o 
bocn  iiitenclcd  as  sueli,"  and  Cliandolor's  assertion 
that  \hc  stont?  Avas  a  l)t'Zoar  wonld,  no  donWt,  l)c  cnii- 
sidcrcd  snlHcicnt.  IIo  would  liavo  succocdcd  ni  tort, 
because  (lie  Tact  that  the  defendant  was  a  jeweller 
would  he  damning  evidenee  that  ho  knew  one  slono 
IVo!"  •mother. 


IMPLIKI^   WAJinAXTY  OF   Ql'.U.ITY  OF  HOODS. 


JONKS   V.  JUST. 


[L.  I{. ;'.  i.i  15.  i;i7.] 


Jones  &:  Co.,  Liverpool  mendninls,  nirrced  to  buy 
from  Mr.  .lust,  a  London  merchant.  •"  numlier  of  bales 
of  manila-liemi),  which  were  exj,.  .•ic(l  to  arrive  in 
sonu>  ships  from  SinL:a[)ore.  'I'he  hemp  did  arrive, 
but,  Avhen  it  was  examined,  it  was  found  to  ho  so  nnieli 
damnucd  that  it.  woidd  not  pass  in  tho  market  as  ma- 
nila-hemp  ;  and  flones  &  (^o.,  who  had  [)aid  tlu;  price 
before  the  ships  :irrive;l,  had  to  sell  it  at  seventy-five 
per  cent  of  tiii!  [)ric(!  which  similar  hemp  would  have 
realized  if  undanniwd.  This  was  an  action  by  them 
against  the  seller,  who  was  admitted  to  have  act'^l 
quite  innocently  in  the  matter,  to  recover  tho  dill'er- 
ence  ;  and  it  was  held  that  ho  must  pay  it,  on  tho 
ground    that  in  every  contract  to  supply  goods  of  u 


SALES. 


137 


specified  description,  wiiieli  the  buyer  has  no  o[){)or- 
tiuiity  of  inspecting,  the  goods  must  not  only  eorre- 
s[)ond  to  tlio  .«peci(ied  descri[)tion,  but  must  also  bo 
Sideabb"  or  merchantable  unib'rthat  description. 

Tlie  maxim  caveat  cniptor  (the  buyer  must  look  out 
for  himself)  generally  applies  as  to  the  quality  of 
goods  .sold,  and  uidess  there  is  an  express  warranty 
thei(!  is  no  warranty  at  all.  But  a  warranty  is  impllid 
in  th(^  followiuii;  cases  :  — 

1.  When  li'oods  are  sold  bv  a  trader  for  a  particular 
pur})osc  of  which  he  is  well  aware, — e.ij.,  co[)per  for 
sheathing  a  shi|),'  or  a  ropo  for  hoisting  goods, ^  or 
fertilizini;  manure  i'or  a  farm,'  or  boxes  for  ))ackin2: 
tobacco  in,^  there  is  an  implied  warranty  on  his  part 
that  tluy  shall  be  reasonably  tit  for  the  i)ur[)ose  for 
which  they  are  bought. 

'2.  AVhen  the  contract  is  to  furnish  manufactured 
iroods  thev  must  bo  of  a  nu'rchantaI)l(^  nualitv. 

?>.  In  the  case  of  a  sale  by  sampler  there  is  an  ini- 
])lie<l  undertaking  that  the  sample  is  fairly  taken  iVoui 
tiie  bidk. 

4.  The  custom  of  a  particular  trade  may  recpiirc  a 
wairantv  where  none  is  exnrcsslv  ^lis'en.^ 

T).  On  the  .sale  of  chattels  there  is  an  implied  war- 
ranty of  title  ;  /.'.,  that  they  are  the  property  of  the 
purchaser.'* 


•  Jones  r.  Hriirlit;  .0  IVmir.  'uV,\. 

-  Hniwii  r.  Kdiiiiiiitoii,  L'  .Miic.  &  (J.  L'7'.>. 
^  Mason  ; .  (liappi'll,  I.")  Gnitt.  tu'l. 

*  Gt'i-st  f.  Jones,  lOCVnt.  L..I.  loO. 
■'■'  Tiiiwsoii,  Us.  i^  ('.,  ^(•(•t.  l.'iS. 

"■  Tliursion  r.  Kpriitt,  ;i-'  Me. '-'02;   Williamson   v.  Simmons,  34 
Ala.  C!)l. 


3 


t 


#  • 


l^J.S 


.   M:Al')IN(t    CASKS    SIMl'I.iriKI). 


WAJiJiAXTY    MUST    HE    I)1'1UX(;    COUltSE    OF 

SALE. 


HOGIXS    V.   l»I.V>lPTOX. 


•■ft  >' 


H 


[11   rick.  '.17. ] 

Tln'  pl.'iiiitiir  i)uicli:is('(l  of  llii'  (lofi'mluiit  ;i  qiKinlity 
of  wiiio  in  l><)ttlc's.  Al'tcr  the  s'.i\q  was  coiisimiiniitcd, 
and  tlu!  iK-rcndant  had  r(H'(>iv('d  payment  in  ii{'u()tial)l(^ 
paper,  ho  wrote  out  a  nieinoranchun  of  the:  sah",  which 
he  sent  to  the  phiintill".  In  liiis  tlic  wine  was  (h'scrihcd 
as  '"good  line  wine.*"  lint  when  the  j)hiintir  eaine  to 
open  the  bottles,  \n\  found  that  it  was  anvthiuii"  hnl 
"good  tinc!  wine,'"  —  in  short,  it  was  very  had  sour 
wine.  'I'hen  the  plaint ilf  hi'onghi  an  action  aUeging 
that  the  <h'sci'i[)tion  of  the  li(pior  in  liie  ineniofandnin 
of  sale  was  a  Avari'antv  that  it  was  rnxxl  fine  wine,  l^ul 
the  court  held  that  it  was  not  necessary  to  decide  whet  her 
this  was  so  ov  not,  for  the  reason  that  the  strongest  kind 
of  a  warranty,  if  iixn/r  afli'v  thv  xhIp  is  vniiiphtt'd ,  is 
invalitL  To  sui)port  a  warrant  v  not  uiveii  in  1  he  course 
of  the  .sale,  tlu're  must  hv,  a  new  consideration  ;  for  the 
consideration  i:iven  for  the  "oods  is  exh;iust(>d  hv  their 
transfer  without  a  warranty,  and  there  is  nothing  to 
support  a  suhsecpient  warranty. 


PUIN'<;il'AL    AND    AGENT*. 


139 


IX.-       PrJXCIPAL   AND   AgEXT. 


SPECIAL  AGENT  MUST  PURSUE  AUTJIOIUTY. 


liATTV    V.    CAKSWEI.L. 


[L' Johns.  4.S:    1  Am.  \a\.  C'as.  d.-;;;.] 


'3 


Mr.  AI)iior  Car.swoll,  at  tlio  solioitiitioii  of  his  brother, 
who  Avantol  to  raise  some  money,  told  his  aueiit  that 
lie  mii^ht  siu'ii  his  (Al)iier's)  name  to  a  note  lor  $2r)0, 
pni/aJtJe  in  six  ntoitf/is.  A  lew  days  after,  the  brother 
and  th(^  aufciit  liot  toirethor,  and  the  agent  signed 
Abiier's  uauu)  to  a  note  for  $2^)0,  payable  in  ,s/xf>/ 
<J(t>/s.  The  brother  gavc!  tl  is  note  to  a  ereditor.  "When 
it  fell  due,  Al)ner  refused  to  pay  it,  and  the  creditor 
sued  him,  but  without  success,  the  court  deciding  that 
as  this  was  a  s[)e('ial  authority  to  do  a  particuhir  thing 
in  a  })articul!ir  way,  the  priiicii)al  was  not  liable  for  the 
act  of  the  agent  iu  executing  his  power  iu  a  different 

WHY. 


140 


LKADINd    CASKS    SIMPLIKIKD. 


DEATH  OF  PIUXCIPAL  REVOKES  AUTITOnTTY. 


HAIlPKIl  V.  I.ITTI^E. 

[•2  Me.  14;  11  Am.  Dfc.  1.] 

Ill  March,  ISll,  Mr.  "Williaiu  J.icksoii,  who  ivsidod  in 
^Ic'xico,  iiavo  a  [)()\V(M"  of  attorney  under  seal  to  Har- 
per, aiitlioriziiiiji:  him  to  sell  his  real  estate  in  Portland, 
]Maiiie.  On  the  <Slh  ol"  January,  1814,  Harper,  as 
Jaekson's  auont,  sold  the  i)roi)orty  to  Little  and 
received  and  pocketed  the  purchase-money.  Ret\V(>en 
these  two  dates  there  had  heen  a  little  niisnniU'rstand- 
\ug  hetwi^en  the  Unite(l  States  and  (ireat  Britain, 
Avhich  had  interrui)ted  intercourse  hetween  ]\Iaine  and 
foreign  countries,  and,  consequcMitly,  it  was  some  time 
after  the  sale  had  heeii  consummated  that  it  heeanui 
known  to  the  parties  in  Portland  that  Mr.  Jackson  had 
departed  this  life  on  the  eiii'hteenth  day  of  Aujiust,  1813. 
His  executors  failing  to  obtain  tin;  pnrchase-moui'V 
from  Harper,  l)ronght  an  action  to  recover  the  pro[)- 
erty,  and  were  suv-cessi'ul  under  tlu;  rule  of  law  tiiat 
the  death  of  the  princii)al  causes  an  instantaneous  revo- 
cation of  the  authority  of  tin?  i)rincipal.' 


*  "A  few  illiistriitioiis,"  siiys  the  writer  of  ;i  forcible  Jirticlt!  on 
this  sul)ject,  iJiiblislu'il  a  f(!W  j'ears  a;j:o  (see  (i  (^ent.  L.  J.  38;?),  "  will 
servo  to  show  how  tcclmieal  and  artillcial  are  the  reasons  which 
have  iK'cn  considered  snllicient  to  justify  the  rule  that  no  valid  act 
can  he  done  by  an  airent  actiun  for  a  deceased  person,  thou;j;h  no 
notice  of  the  death  of  tiie  iJrincipal  lias  reached  the  i)arties  at  the 
time  of  the  transaction. 

•*  Suppose  A.,  wlio  lives  In  Milwaukee,  does  the  followinji  acts 
on  the  Jlrst  day  of  May :  — 

"  I.  Executes  his  promissory  note  to  15.,  due  one  year  after  date. 

•'  II.  Executes  his  last  will  and  testament  in  proper  form,  l)y  the 


PUINCII'AL    AM)    AGENT. 


141 


CONTRACTS   WITH  AGENTS   OF  UNDISCLOSED 

PRINCIPALS. 


l»ATKItS<)\   V.    GAXI)  VSKQUI. 

[l.">  Kast,  •;•.';  L'  Sinitli's  \A.  <':is.  ;U',i.] 

Giind.'isefiui,  a  respectable  and  eiitin'})risin2^  Spanish 
iiu'rehaiil,  made  up  liis  mind  that  tlu;  foreign  market 
<'()iild  do  with  some  silks  and  satiiis.  Ho  accordinfrly 
set  sail  I'oi'  Eniilaiid,  aiid,  on  rcacliiiig  London,  went 
to  Larrazabal  &:,  Co.,  certain  aiiients  in  the  city,  and 
commissioned    them    to   hnv  a   (luantitv  of  ^ioods   lor 


tiTiiis  of  wiiicli  liis  luopcrty  is  left  mainly  lo  stranjicrs,  and  bis 
natural  lirii's,  tlioimh  ili'siTvlii;;,  arc  left  with  l)ii(  u  pittance. 

"III.  (lives  ('.  and  1).,  who  are  his  a;reiits  at  New  York,  each 
written  anthority  to  purchase  certain  jroods  in  his  iianu-. 

•'  <  )u  .May  lid  he  writes  to  ('.  not  to  i)ny  any  j^oods.  The  next  day, 
May  .".rd,  \.  is  accidentally  killed. 

"  Let  ns  see  iiow  far  tiie  law  respects  liis  wishes  and  compels  his 
representatives  to  fulfil  thi- ohlitrations  he  has  incurred.  <»l'  course 
his  reiireseiitatives  must  pay  the  note,  though  iiiven  \\\  liis  iKtuw, 
and  therefore  the  promisi-  of  a  dead  man.  In  this  case  the  law  im- 
plies an  agreement  on  his  i)avt  that  his  representatives  shall  be 
hound  hy  liis  contra*-!,  and  gives  effect  fo  that  agreement.  His 
wishes  as  set  forth  in  the  will  are  respected  and  enforced  by  the 
law,  though  lliey  are  tin'  wishes  of  a  di-atl  man,  a  man  who  can  no 
longer  act,  and  tliongh  they  do  great  iujustice  to  those  who  sliould 
rightfully  enjoy  his  property. 

"On  May  ;!rd,  ('.  and  I),  receive  .\.'s  letler>,  written  May  1st, 
and  each  purchases  goods  according  to  his  iustriictions,  (.).  pur- 
chasing Immediately  before,  and  1).  iuimediately  after  the  death 
of  A.  Kach  agent  ships  the  goods  b'onght  by  him  to  Milwaukee, 
consigned  lo  .\.  The  goods  are  snbseiiuently  destroyd  on  the 
roail  by  the  '  act  of  God.'     The  parties  ol   whom  the  goods  were 


? 


142 


LEADIXa    CASES    ISIMl'LIFIED. 


hiin.  huYV.  &  Co.  (lifo  is  too  short  to  vopcat  tlio 
whole  name)  proceeded  to  execute  the  coiniuissioii, 
and  iiskod  Pat<M'son  &  Co.,  ji  great  hosiery  11  nn,  to 
send  certain  si)cci(ied  artiides,  with  terms  and  prices. 
Now,  Paterson  &  Co.  knew  Larr.  &  Co.,  and  Iim'I  per- 
fect confidence  in  them,  hut  Gandasecpii  ihey  did  not 
know,  and  had  no  confidence  in.  Therefore,  though 
thev  sent  the  "-oods  and  tliouijrh  thev  knew  i)ei'fectlv 
well  that  they  were  really  for  Gandasecnii,  and  that 
Larr.  &  Co.  were  mcrelv  his  amaits  in  the  matter,  yet 
for  all  that  they  hooked  the  goods  as  sold  to  Larr.  &, 
Co.  This  was  unfortunate,  l)ecauso  it  hiip[)ened  that 
Gandasecjui  was  really  a  more  sul)stantial  p(>rson  than 
his  agents,  who  shortly  af"terwai(ls  went  to  financial 
smash.  Paterson  was  not  disposed  to  he  content  with 
the  fraction  of  his  deht,  which,  a>  a  credito''  in  l)ank- 


•  r' 


purchased  tal<e  steps  to  recover  tlie  i)urcliase-nioney  of  tJie  repre 
sentatives  of  A.  Now,  tlie  aiitliority  of  C.  to  purchase  jioods  was, 
m  fact,  reschi(U'(l  l)efore  the}'  were  brouttiit,  by  tlio  seeoutl  letter  of 
A.  Tlio  hiw,  however,  very  i)roper]y  protects  those  who  deal  with 
au  agent  without  notice  that  liis  authority  has  been  rt'voknl,  and 
the  fact  that  A.  had  done  all  in  his  power  to  revoke  the  order  he 
had  previously  made,  and  that  .sucii  order  was  absolutely  rescinded, 
would  not  enable  the  representatives  of  A.  to  avoid  the  Uability  he 
thus  assumed.  But  in  the  case  of  I).,  irhose  anthoritij  A.  never  at- 
tempted or  ■intrndrd  to  reriifiC,  the  law  holds,  that  the  vendor  of  the 
goods  cannot  recover,  simply  because  tin,'  party  in  wiiose  name  the 
contract  was  made,  was  not  livin;^  at  that  time.  In  both  cases,  the 
act,  ////  rirtue  afvliidi  lurh  (Hjent  k^is  eiiijioWir'  d  to  lut'i,  vu:'  tlic  aet  of 
a  lir'nij  princip(tl.  In  tlie  case  of  (-.  the  principal  does  all  in  his 
power  to  prevent  the  agent  from  acting;  in  the  case  of  1).  he  de- 
sires the  agent  to  act,  and  does  nothing  to  prevent  him.  The  law 
interposes  a  technical  rule  which  entindy  defeats  his  intentionsj 
and  in  I'ffeet  places  upon  one  of  tlie  innocent  vendors  the  burden 
of  paying  a  heavy  insurant!  on  the  life  of  A.  without  receiving  any 
consideration  therefor." 


L., 


I'lUNCll'AL    AM)    AGENT. 


143 


ruptcy,  ho  nilirht  luivo  got  from  Lsirr.  &  Co.,  iincl, 
with  the  huidablo  object  of  gottiiii^  the  whole  of  his 
money,  sii(!(l  Giuuliisequi.  But  it  was  held  thut,  if  the 
seller  of  goods  knows  tluit  the  person  he  deiUs  with  is 
only  5in  iigont,  and  knoics  a/.^o  wJto  hi  a  pnnclpnl  is,  tind 
in  spite  of  that  knowledge  chooses  to  give  tin?  credit 
to  the  agent,  ho  nmst  stand  by  his  choice,  und  cannot 
sue  the  princi[)al.  "  I  havo  generally  understood," 
said  Bailkv,  »!.,  "  that  the  seller  may  lookto  the  prin- 
cii)al  when  ho  discovers  him,  unless  he  has  abandoned 
his  right  to  resort  to  him.  I  agree  that  where  the 
seller  knows  the  principal  at  the  time,  and  yet  elects 
to  i^ivo  credit  to  the  airont,  he  must  be  taken  to  havo 
abandoned  such  right,  and  cannot,  therefore,  afterwards 
sue  the  principal." 


3 


THOMSON'  V.  J)AVI<:NP0IIT. 

[;t  Burn.  &  Cress.  7S;  -j  Smith's  Ld.  Cas.  :i")S.] 

A  person  named  McKune  carried  on  at  Liverpool 
the  business  —  whatever  it  may  be  —  of  a  "general 
Scotch  merchant."  This  gentlemen  one  day  received 
a  letter  fVoiu  some  customers  of  his  in  the  land  of 
Burns,  to  tho  following  ertect :  — 

DuMFUiKS,  March  29,  1823. 
Dkau   Siu  ;    Annexctl  is   a  list  of  ffoods  which  vou 
Avill  please  procure  and  ship  j)pr  Nancy.     Memorandum 
of  goods  to  bo  shipi)ed.     Twelve  crates  of  Statibrd- 


144 


LKADINd    CASKS    SIM  I'LIl'l  Kl). 


shiiv  w:if(^  orovii  window  jihiss,  ti'ii  s(ni:ir('  boxes,  I'tc, 
etc.  Yours,  ot<!., 

TllO.^ISON  iii  Co. 

On  receiving  tliis  letter  McKune  went  straiiiht  to  the 
shop  of  Diiveuporl  &i\).,  who  were  ghiss  jind  earthen- 
ware deah'rs,  and  had  an  interview  with  their  head 
partner.  lie  did  not  i)retend  to  be  l>uying  for  liiinself. 
He  said  he  had  received  an  oriU'r  to  ])nrcliase  some 
ijood.s  for  some  customers  in  Seothmd,  hut  /m  (fid  iiof 
mention  tlieirna  me ,  {\\\(\  the  Davenports  did  not  ask  for 
it.  They  sokl  about  £:?()<)  worth  of  goods  and  dc^bited 
McKune,  though  they  knew  perfcH'tly  Avell  he  was 
only  an  agent.  Then  McKune  faiU'd  without  having 
l)aid  Davenport  &  Co. 

This  was  an  action  by  Davenpoi't  &  Co.  against 
^IcKnne's  ])rincipals,  Thomson  &  Co.,  who  denieij 
their  liabilitv  on  the  iiround  that  Davenport  *.*c  Co. 
had  debited  ^NIcKune,  and  could,  th(>reforo,  look  only 
to  him  for  payment.  This  view,  however,  was  not 
adopted  by  the  court,  and  Thomson  &  Co.  wei-e  nia(h' 
to  iiiiy,  tlu^  principle  being  that,  as  the  name  of  the 
real  buyer  had  not  been  disclosed  to  them  by  the 
agent,  the  sellers  had  had  no  opportunity  of  writing 
him  down  as  theii'  debtor. 

The  chief  rules  on  this  subject  are —  1.  ^Vhere  vou 
contract  with  a  man  whom  you  know  to  be  an  agent, 
and  you  know  also  who  his  principal  is,  but,  in  spite 
of  such  knowledge,  you  give  credit  to  the  agent,  and 
to  him  alone,  you  are  bound  by  such  election,  and  can 
not  afterwards  sue  the  principal. 

2.  AVliere  you  deal  with  a  man  who  appears  to  be  a 
pruicipal,  you  may,  on  discovering  that  he  is  only  an 


ritlNCIl'AL   AM)    A(H:.\T. 


145 


agent,  sno  liini  or  lils  principal  at  your  plciisurc.  It 
is  necessary,  however,  that  you  should  make  your 
election  between  them  within  a  reasonable  time. 

3.  Where  3'ou  deal  with  a  man  who  is  known  to  bo 
an  agent,  but  whose  principal  is  undisclosed,  you  may, 
on  giving  evidence  that  he  is  himself  i)rincii)al,  sue 
him  ;  otherwise,  you  must  sue  his  princii)al. 

4.  If  a  person  siijns  a  contnict  in  his  own  name 
without  disclosing  the  fact  that  ho  is  only  an  agent, 
]\{)  is  prima  f((cie  to  ha  decMUed  the  piM'son  res[)onsil)le  ; 
and,  on  action  bcini!;  brouuht  airainst  hiiu  on  the  con- 
tract,  he  cannot  tui-n  i-ound  and  shutHe  olf  his  liability 
bv  savinii"  that  lu;  was  onlv  somebodv  else's  aijent. 
Parol  evidence  to  ])rove  such  a  thing  would  not  be  ad- 
mitted, and  if  he  gets  out  of  the  (»(!ra[)e  at  all,  it  will 
be  because  it  is  quite  clear  from  the  rest  of  the  docu- 
meiU-  that  he  did  not  mean  to  bind  himself  personall3\ 
And,  indeed  (as  w(!  shall  see  in  the  next  case),  the 
person  who  has  signed  a  contract  in  his  own  name  may 
still  bo  liable,  although  in  the  Ixxly  of  the  contract  ho 
has  expressly  declared  himself  to  be  an  agent. 


.•3 


STOXK   v.    AVOOD. 


[7  Cow.  t.V'.;    17  Am.  Dec.  .-.I'll.] 


Captain  Stone,  part  owner  and  master  of  the  good 
ship  George,  and  Timo  N.  Wood  entered  into  a  con- 
tract under  seal,  the  provisions  of  which  are  not  rele- 


13 


14U 


LKAUINU    CAS^K.S    t^l.Ml'LIlli;i>, 


vant  to  this  Iiistoi-y.  It  Is  enough  to  s:iy  tli;it  the 
COiilract  cU'sc'l'ilx'd  Wood  "  ;is  ilj^ciit  of  ,1.  Si  Iv.  K.'iV- 
nioiul,"'  aiul  rcleri'tHl  to  him  tlii'oiiirhout  "as  agent,** 
ch)sing  with  ail  agreemeiit  by  Wood  "as  agent,"  to 
pay  a  certain  sum  to  the  captain  on  c(!i'lain  conditions. 
These  conditions  hcing  [xTJoi'ined,  the  captain  sned 
for  the  money,  to  wliich  ^^'ood  i'ei)lied  that  J.  &  Iv. 
Raymond  were  the  persons  to  whom  ho  ought  to  h)ok. 
But  the  cai)tain  did  not  see  it  in  tliis  liglit,  and  neither 
did  the  Su[)reme  Court  of  New  York.  They  said  that 
an  agent  signing  a  contract  in  liis  own  name;  is  pc'-son- 
ally  hound  thereon,  even  though  lie  is  (h'scrihed  in  it 
as  an  airent.  'iMu;  words  "  as  auent,**  are  a  mere  de- 
scription  of  the  jjcrson. 


» 


SET-OFF  AGAIXST  PlilNCIPAL. 


•*■■ 


OEOHCJK  A.  ci.A(;ett. 

[7  Term  He]).  ;•.:>".»;  L'  Sniitli'sLil.  C'as.  1S5.] 

Messrs.  Kicli  &  TIeapy  cari"ie(l  on  business  in  woollen 
ch)ths.  For  \\h\  purposes  of  tlieir  riches  heaping  they 
not  only  carried  on  business  on  their  own  account,  l)ut 
acted  also  as  factors  for  other  peopl(\  A  factor,  it 
should  be  remarked,  dill'ers  from  an  ordinary  agcMit  in 
having  the  possession  of  the  goods  of  his  i)rincipal 
which  he  sells.  As  Kich  &  Ileapy  carried  on  all  their 
business  at  the  same  warehouse,  it  would  not   be  ob- 


I'UINCirAL    AM)    A(ii:\T. 


147 


vious  when  they  wore  acting  as  principals  and  Avlion  as 
airojits.  At  the  lime  of  f)ur  story,  Messrs.  Rich  & 
Ilcain'  ha[)p(MU'(l  to  liavo  In  their  possession  as  factors 
a  large  (luantitv  of  i^oods  helonsjin;^  to  Mr.  Georue,  a 
clothier  of  Fi'onie,  wliich  goods  were  in  their  ware- 
house along  with  ijoods  belonixin*/  to  tlioniselves.  It 
happened  Just  thou  thiit  Messrs.  Clagett  were  in  want 
of  such  goods.  Tliev  held  a  hill  of  exchanije  for 
£1200,  aeoei)ted  by  Rich  &  ileapy,  and  as  they  saw 
no  particular  liki-lihood  of  getting  i)aid,  they  thought 
it  would  not  bo  a  bad  plan  to  buy  goods  from  them  on 
credit,  and  deduct  the  amount  of  the  bill  from  the  pur- 
chase-money. In  pursuan<'e  of  this  plan,  Messrs.  Rieli 
&,  rieap}^  sold  them  a  (piantity  of  goods  ;  making  out 
a  bill  of  j)arc(>ls  for  the  whole  in  their  own  names,  and 
Messrs.  Cla<rett  fuliv  bidieved  that  thev  were  dealing 
with  principals.  Messrs.  Rich  &,  Ilcapy  took  the 
goods  out  of  one  general  mass  in  their  warehouse,  so 
that  .1  large  i)ortiou  of  them  reaTly  belonged  to  the 
clothier  of  Frome,  the  unfortunate  Mr.  G(!or2:e. 

This  was  an  action  by  that  gentleman  against  Messrs. 
Clagett  for  the  jirice  of  the  portion  of  the  goods 
which  belouii'ed  to  him,  and  which  lu^  said  Messrs. 
Rich  &  Ileapy  had  sold  as  his  agents.  Messrs.  Clag- 
ett said  they  did  not  know  that  Rich  &  Heapy  Avere 
his  airents  or  anvl)odv  else's  a<;ents,  and  claimed  to 
have  the  same  riiiht  of  set-otr(that  is  to  sav,  of  de- 
ducting  the  above-mentioned  del)t)  which  they  would 
have  had  against  Messrs.  Ricii  &  Heapy.  In  this  con- 
tention thev  were  successful.' 


"r  I 


'  "  111   all  these  cases  of  set-off,"   says  an  eminent  judsje  in  a 
later  case,  "the  law  eiidea'-ors  to  meet  tlie  real  honesty  and  jnstice  * 
of  the  case.     Where  ^oods  are  placed  in  the  hands  of  a  factor  for 


148 


I,i:\l)IN(l    (ASKS    SI.MI'F-II'IKl). 


AGENT    KXiJEEDINd    ArTIIOIlITY   LlAllLK    IN 

CONTRACT. 


COLI.KX  V.  AVItlOHT. 


m 


'  It"' 


[7  Kl.  v>t  HI.  .'501  i  S  Id.  (-47.] 

Mr.  Wriirlit  was  tlu^  laml  !IL'<mi<  of  a  u-cntlcniau 
iianitMl  Diiiiii  (Tardiici',  and  as  such  madi^  an  a^'i'*'*'- 
iiu'iit  with  a  Mr.  CoWcn  lor  tlic  lease  to  him  lor  twelve 
and  a-lialf  years  ofalai-iu  ol"  Dunn  (Jardner's.  On 
the  strength  of  this  airreement  Collen  entered  on  the^ 
enjcn'inent  of  the  farm  ;  l»nl  In;  soon  fonml  that  tliere 
was  a  serions  dillienlt y  in  the  way.  Mr.  Dunn  (Jard- 
ner  'efnsefl  to  execute  any  such  h'ase.  savin;;  lii-'t  he 
had  never  antiiorized  Mr.  Wriuht  to  airreo  for  a  lease 
for  so  long  a  term;  and  this  proved  to  lu'  the  fact. 
The  disa[)i)ointed.fai"mer  hrou^lit  an  acti(»n  airainst  th(> 
executors  of  tiio*airi!nt  who  had  h-d  him  wronn",  am! 
the  n  ain  (juesticin  was  whether  Wright's  assuminu- 
to  act  as    Dmm  (Jardner's  airent  to   ixrant   the    lease 

sale,  and  arc  sold  by  liiiu  imdiT  (•irt'iim^tanccs  that  arc  calculatcMl 
to  induce,  and  do  indiicc,  a  |)nrclias(  r  to  bi'licvt;  tliat  he  l>i  dcalin;^ 
with  his  own  fioods,  t!io  principal  is  not  pormlttcd  afterwards  to 
turn  round  and  tell  the  vendee  tliat  tlie  cliaracter  he  ld:n.-eif  has 
allowed  tlie  factor  to  assume  did  not  really  belong  to  him.  The 
purchaser  may  have  boujifht  for  the  express  purpose  of  settinj;  off 
the  price  of  the  yoods  against  a  debt  due  to  him  from  tiie  seller." 
These  words  put  the  rule  and  its  reason  very  clearly.  "Rut  the 
case  is  different  where  tlie  purchaser  has  notice'  at  the  time  that  the 
seller  is  aetin;;  merely  as  the  aiient  of  anotlier.  In  tliat  case,  there 
would  be  no  honesty  in  alhnviiii^  the  purchaser  to  set  off  a  bad  debt 
at  the  expense  of  tiie  iirincipal."     Fish  r.  Kemj)ton,  7  C.  ]J. 


rUlNCIl'AI.    AM)    AOINT 


149 


aiuouiitod  to  II  contract  on  liis  part  that  lii>  had  such 
aiilhoiit y.  I'his  was  tlic  view  a(h)|)l('(l,  so  that 
Wriu'ht's  excciitoi's  hccaino  liahh!  to  Colh-n.  "  I  am 
of  opinion,"  said  \\*iM-r.s,  J.,  (U-livcrini;  1  he  Judiinicnt 
of  the  Court  of  KxiduMpicr  ChandxT,  "that  a  [)('i'soii 
who  iiidnccs  anothci"  to  contrac't  with  him  as  tho  airciit 
of  a  tiiird  party,  l>y  an  nncjntdificcl  assertion  of  liis 
being  anthorizcd  to  act  as  snch  aixent,  is  answerable  to 
tho  person  mIio  so  contracts,  for  any  danniges  which 
ho  may  sustain  by  reason  of  the  asscnlion  of  authority 


x'inii;  untrue. 


This  is  not  tho  oaso  of  a  bare  misstate- 


ment by  a  person  not  bound  by  any  duty  to  irivo  \\\- 
lornnition,  Tht;  fad  that  tiie  professed  agent  honestly 
tliiidvs  that  he  has  authority  all'ect.s  the  moral  charac- 
ter of  his  net  ;  l>nt  his  moral  innoeonce,  so  far  as  the 
person  wlioin  he  has  induced  to  contract  is  concei'iied, 
in  no  way  aids  such  person  or  alleviates  the  inconvi'iii- 
enc(!  and  damaiio  which  he  sustains.  Tho  objiiratioii 
arising  in  such  a  case  is  w(dl  expressed  by  saying  that 
a  person  [)i'ofessing  to  contract  as  agent  for  another 
im[)lie(ljy,  if  not  exi)i'essly,  undertakes  to  or  promises 
tho  person  who  enters  into  siudi  contract  u[)oii  tho 
faith  of  the  professed  agi'ut  being  duly  authorized, 
that  tho  authority  which  In;  professes  to  have  does  in 
point  of  fact  exist.  Tho  fact  of  entering  into  tho 
transaction  with  tho  professed  agent  as  such  is  good 
consideration  for  tho  promise." 


•■'3 


I  ■ 


150 


LKADINO    t     SKS    SIMPLIFIKD. 


f 


PAR TXEliSlIIP  LIABILITY. 


WAKill    V.  CARVER. 


[1'  II.  Mliick.  •-';!.");    1  Smith's  Ld.  Cp.s.  itCS.] 


*  •  . 

.•V 


m 


In  Fchniarv,  171>n.  Enisiniis  Carver  and  William 
Carver,  ship-aircnts,  of  Southampton,  of  the  one  i)art, 
and  Archibald  (l-icslcr,  ship-agent ,  of  Plymouth,  of  the 
other  part,  entered  into  a  rather  wide-awake  agreo- 
nient  for  their  mutual  h.enetit.  Rv  tiie  terms  of  this 
agi'eeinent;  Ciiesler  was  to  remove  from  Plymouth  and 
settle  ut  Cowes.  There  he  was  to  establish  a  house 
on  his  own  aeeoniit,  which  the  Carvers  were  to  jMifr. 
Ciiesler,  on  the  other  hantl,  was  to  endeavor  to  per- 
suade all  llie  shi[)-iu.Hti'rs  putting  into  Portsmouth  to 
emi)loy  the  Ci'ivers.  Arrangements  wei'o  made  for 
sharini;  in  eertaiii  proportions  the  jjrolits  of  their  rc- 
speetlve  commissions,  and  the  discount  on  tln^  hills  of 
tradesmen  employed  by  them  in  repairing  the  ships 
consigned  to  them.  It  was  -Uso  expressly  provided 
that  neither  of  th<^  parties  to  the  agi'(>ement  shoul-A  bo 
answeiable  for  the  acts  or  losses  of  the  other,  but  each 
for  hi.'i  own.  Accordingly,  (liesler  left  Plymouth  and 
came  to  Cowes.  and  in  tiie  course  of  carrvin<x  on  his 
iiusiness  there  he  iiu-urred  .  certain  tlebt  to  the  plain- 
till'  in  this  action,  who  now  sought  to  inako  the  Car- 
■  i-s  liable  on  the  ground  that  the  aiireement  made  them 
pa;; ners  with  (liesler  and  i'(>s})onsible  for  liis  debt.s. 

It  was  held,  in  spite  y)(  the  clause  providing  that 


mi^amusM— 


PRIXCIPAL    AXO    A(}ENT. 


151 


each  should  ho  responsible  for  his  own  losses,  th:it  the 
agreement  did  niuke  the  Ctirvers  partners,  for:  — 

1.  lie  who  takes  the  proHts  of  a  partnership  must 
of  necessity  he  made  liable  for  the  losses. 

(The  student,  however,  must  look  at  the  next  case 
before  taking  this  [)roposition  for  gos[)el.) 

2.  lie  who  hmds  his  name  to  a  partnership  becomes, 
as  against  all  the  rest  of  the  worhl,  a  partner. 


•-§ 


COX   V.  IIICK3IAN. 


[S  II.  L.  Cas.  '-'(IS.] 


Messrs.  Smitii  iSc  Co.,  ir*  merchants,  becoming  in- 
solvent, a  deed  of  arrangement  was  executed  between 
them  and  their  creditors.  By  this  deed  Smith  &  Co. 
assigned  all  their  pro[)erty  to  five  trustees  to  carry  on 
the  business  under  the  name  of  the  Stantoi*  Iron  Con?- 
pany.  The  trustees  were  to  manage  the  works  as  they 
thouidit  fit,  and  to  execute  all  contracts  and  instru- 
ments  in  carrying  on  the  business.  Amongst  the 
creditors  were  two  j^entlemen  who  afterwards  bios- 
somed  into  the  defendants  in  this  action.  They  sub- 
scribed .iud  executed  the  deed,  and  were  both  named 
as  trustees.  One  of  them  never  acted  at  all  ;  the 
other  acted  for  six  weeks  and  then  resigned.  The 
other  trustees,  however,  did  JU't,  and  did  the  best  Hiey 
could  for  the  business.  In  tlie  carrving  on  of  the 
business  the  plaintitf  supplied  the  comi)any  with  a 
quantity  of  iron-ore,  and  one  of  the  trustees  accepted 


l'>2 


ii:\i)i.\(;  (Asis  si.Mi'i.ii'iiM). 


liills  of  oxcliimir*'  ill  til*'  name  of  the  cotnpMiiy  lor  \\\o 
j)i'ici'  of  it . 

Tlio  (luc'stioii  was  wlictluT  flic  tru.stccs  wci'c  niifcMits 
for  liio  (Icft'iKlaiils  to  accept  tin;  Mils,  and  it  was  hch] 
tluit  tlicy  were  )i<)f ;  on  tlio  <rroiiii(l  that  the  persons  for 
whose  heiietit  the  business  was  carrieil  on  were  not  the 
crcditoi's,  hut  Messrs.  Smith  &  Co.  The  real  test  of 
))arlnership  iialtility,  the  judii'es  said,  was  iiof  paitici- 
patioii  in  the  profits,  hut  whether  ihe  trade  was  eai'ried 
on  1)V  persons  uetinii'  -'i-^  th*  fi/rnfs  of  the  p(>rsoiis 
souu'ht  to  he  made  liahle.' 


mfi 


'  Persons  in;iy  jx-  p;irtni'rs  iis  rcijiinls  tlio  worlil  at  lariit;,  al- 
tluMifjh  tlii-y  are  not  partners  as  bctwiHii  thonisclves.  If  a  man 
holds  himself  out  as  a  partner  he  is  Hal)le  to  a  person  wlio,  for  that 
reason,  ;iivi's  credit  to  the  (Irni.  If  it  were  not  so.  there  would  be 
even  more  imposition  in  l)nsiness  transactions  than  tliero  already 
Is.  Tlie  law  does  not  prescribe  any  particular  acts  which  shall  con- 
stitute a'Mioldiui:  out:  "  evidence  m.iy  ;;e  ;;iveu  of  auythintr  tlie 
defendant  has  done  wlil'h  would  induce  others  lo  bilicNc  iliat  lie 
WHS  a  partner,  such  acts  havlnij;  the  effect  of  an  estoppel  by  con- 
duct. As  to  the  other  point  of  those  cases,  it  was  for  a  loiiij  time 
thoujiht  that  if  it  could  be  proved  that  the  defendant  sliand  the 
projil.i  hi'  was  thereby  proved  to  be  a  partner.  The  effect  of  the 
case  of  Cox  v.  Ilicliman  is  to  destroy  tins  doctrine;  and  the  l.iw 
now  is  that,  tl.oULih  connnuuity  in  the  profits  is  strnn;/  evidence  of 
partnershiii,  it  is  not  r(<iirh(sii;'  evidence.  There  must  always  be  uu 
exainiuutiou  into  the  intention  ot  the  contracting  parties. 


XHGOTIAIJLK    rAPKIt 


153 


X.  —  Xkuotiaiuj:  Papkh 


rUi:   REQUISITES    OF    A     PnOMISSORY  NOTE. 


ViVAA.,\lY  V.  IIE^IMlNCaVAY, 


[i;nn.  ii ;  \V\ 


.1.  f;!-.  Hills  .v;  Noti-s  1(1.] 


II 


oinnrmu'wiiv   simmI    !>;i\i(l   Kdlcv  oii    the   I'ollowiiis; 


iiisliiiiiiciit 


"  Castletov,   April,  27.  ISU. 


"  Due  lli'lil"\'  I).   K('llf\',  >.");>  wiici;  he  is  ( went  \-()il0 


yciiirs  old,  wiili  iiit('i'«'st. 


"  l).Mii>  Kklf^ky. 


Wliicli  Ilciirv  I).  Ki'll(>v  li:ul  .'issjfiicd  to  him    hv  a 


n 


indoi'sc'iiu'iit  in  writing.      Tlu'  duloiulaiil  [)U':uk'd  tiiat 


tl 


lis  was  not  a  proiiiissory  note 


\v 


hid 


1  was  a  Aorv  vi 


tal 


question,  hccauso,  if  it  wci'c  not  a  i)!'otnissor\'"  note 
it  was  not  as.siuMiahlc  l>y  indor. '-nKMit,  and  lli'inminir- 
way  had  no  ni:;lit  to  I»rinii  an  action  on  it  in  his  own 
name.  The  coiiit  held  the  plea  <rood,  on  the  irround 
that  to  constitr.te  a  promissory  note  the  money  must 
he  payalile  certainly,  and  not  (U'[)endent  on  any  cou- 
linjifency  either  as  to  event,  the  fund  outof  v.hieli  pay- 
ment is  to  I)e  made,  or  the  parties  by  or  to  M'hom 
payment  is  to  be  made,     A  promise  to  pay  a  sum  of 


154 


LEAOIXO    CASrS    SIMPLIFIED. 


money  Avhen  a  particular  })t'rs()n  is  married  is  not  a 
jiroinissory  note  —  he  may  never  be  married.  80  of  a 
liromise  to  pay  when  a  particular  ship  returns  from 
soa  —  it  may  never  return.  Here  tlio  payment  was  to 
be  made  when  Henry  attained  his  majority,  but  that 
was  an  event  that  mi<i:ht  never  hajjpen ;  it  was  not  cer- 
tain, but  simply  contingent  on  his  living  that  long. 
The  fact  that  he  did  live  till  he  was  twenty-one  made 
no  difference.  It  was  not  a  good  promissory  note 
when  made,  and  it  could  not  become  so  ex  post  facto. 
If  the  event  was  sure  to  take  place  it  would  not  have 
mattei'ed  how  long  a  time  eiapsed.  Therefore,  if  the 
instrument  had  been  paysible  at  Henry's  death,  it 
would  have  l)een  a  good  [)romiHsory  note,  for  if  there 
is  one  thing  that  is  certain  it  is  death. 


TirLE  TO  BANK  NOTES, 


MILLEJl  v.  KACE. 

[I  Burr.  451';   1   HiuithN  Ld.  Cas.  507.] 

On  a  dark  December  niu'ht  about  the  middle  of  the 
last  century,  the  mail  from  London  to  the  west  was 
attacked  b}-  highwaymen.  In  reply  to  the  usual 
question,  most  of  the  passengers  meekly  remarked 
that,  on  the  whole,  tliey  valued  their  lives  more  than 
their  money,  and   the   knights  of  the  road  got  away 


.■-;f;>:-.s:ii£&ftaaff(*fcMir:.]*>*K^'',:v ./  ,i*  ■; 


,jii'jil^»jttVl!ftu*t:CT-.^tfc-jv»cw%'K«-7..r.«>j<itlii«-fcAi^^.iK 


NEOOTIAHLE    T'APKIi. 


155 


with  a  ftiir  l)!ii;fiil.  Ani()nij:st  other  th'mirs  tak(Mi  was 
a,  hank-iioto  tor  £21  10s.,  which  a  ]\Ir.  Fiiiiicy,  of 
London,  was  soiuliiii^  down  by  tho  general  [)ost  to  a 
client  in  Oxfordsliirc.  Tho  next  day  the  news  of  the 
disaster  reached  the  cars  of  Mr  Finney,  who  rushed 
olf  in  wild  hasten  to  the  ))ank  and  stoi)i)ed  payment  of 
iho  note.  Not  many  days  after  the  plaint itf,  who  iiad 
come  hy  the  note  (piite  honestly,  and  had  iriven  value 
for  it,  presented  it  at  tho  haidc  ;  but  Mr,  Race,  one  of 
lh(!  bank  clerks,  not  only  refused  to  cash  it,  but  (!ven 
to  hand  it  ])ack.  Miller,  therefore,  sued  him.  When 
the  case  came  before  the  Court  of  King's  Bench,  the 
defendant's  counsel  made  such  an  ing(Miious  argument 
that,  though  Chief  Justice  Mansfikli;  had.  no  doubt 
tliat  ^Ir.  Miller  ought  to  recovei-,  he  thought  it  proper 
to  look  into  lIu!  case,  and  deferred  rendering  judgment 
for  a  week.  But  at  the  end  of  the  week  the  ingenious 
lawyer  was  llooi'cd.  The  court  was  unanimously  of 
opinion  that  [)ro[)erty  in  a  l)ank-not(^  i)asscs  like  cash 
by  delivery,  and  a  party  taking  one  homi  Jide  and  for 
value,  is  ontitletl  to  retain  it  as  against  a  person  from 
whom  it  has  been  stolen. 


WHO  IS  A    ''  IIOLDEH  FOR   VALUE/' 


SWIFT   V.  TYSON. 

[l(i  IVt.  I  ;   Hiji.  1.(1.  ('as.  Bills  &  NoU'S,  48G.] 

Swit't   held   Norton  &  Keith's   iu)te.     They   on   tho 
othc)  hand  had  a  bill  of  exchange  accepted  by  Tyson, 


A 


15(1 


LEADIxa    f'ASi:s    SIMI'LIKIKI). 


in 


jiiid   witli  tliis    tlu'V  paid    their  iioli;   to    Swift.      It    is 

tloubtl'ul  if  Tyson   would  ever    iiavc  Iiccii  compcllod  to 

Diiv  tlu!  ainoiiiil  of  this  hill  to  Norton  &  Ki'ith,  for  thcv 

Iiad  indiu'i'd   hit.)  to  accept  it  hy   a    lot  of  false;    ;uid 

fraiididcnt  rcprcscntatioiiN  ahoiit  some  lands  in  Maine, 

to  which  they  had  no  title;   Init    Ssvift    knew   nothinir 

ahont  these  frauds,  and   he  took  the   hill    of  cxchanire 

before  it  was   due.      But   this   did   not  console  Tyson, 

who  when  Swift   sued   him  on   it,  pleaded  the  i'ase;ditv 

of  Norton  it  Keith.      Uul    the    Supreme   C'ouit  of  the 

United    Slates     de(udcd    the     ease     for    the    i)laintiir, 

"There  is  no  doubt,"  said  .ludii'c  Srouv,  in  one  ofth(> 

ablest  judgments  of  that  great    jurist,    "that  a  hoitti 

fide  holder   of  a  negotiable   instiaunent   for  a  valuable 

consideration   without    any   notice    of  facts   which  ini- 

})each  its    validity  as   Ix'tween   the  antecedent  i)ariies, 

if  he  takes  it  under  an   indorsement    made    before  tlic 

same  becomes  due,  liohN   the   title  unall'ecte(l  by  these 

facts  and  may    recover  thereon,  although  as   between 

the  antecedent  [)arties  tli<>  transaction   may  be  without 

any   legal   validity.      This  is  :i  doctiMue  so   long  and  so 

well  established,  and  so  essential  to  the  secui'ity  of  ne- 

gotiaI)le  paper  that   it  is  luiil  uj)  among  the  t'undaiucn- 

tals  of  the  law,  and  reipiiics  no  authority  or  reasoning 

to   be    now   brought     in   its    suppoi't."       The  (picstioii 

then   was  whether  a  j)re-e.\istiug  <lel>t  was  a  sufficient 

consideration  to  shut  out  the  e«piitics  of  tin;  original 

parties  uiKh'r  this  rule.     TIk;  coui-t   ludd  that  it  was, 

und    that  Swift's  title  was   noi    aHectccl   by  wjjat  had 

taken  place  between  Tvson  and  Norton  &,  Keitii.' 


It  is  necessary  to  say  lu-re  that  tlie  question  diciiled  in  this 
case  is  one  of  tliose  (luestions  iipoii  wliicii  entirely  contniiy  views 


SS,r*«Sfc;.. 


•'-^ft'^^^itH^j  v„jKr«ajLi£! 


NEOOTIABLK    rAl'KIt. 


1')? 


ynriCT'J  OF  DTsnOXOIi,  WHEN  XECESSARY. 


IU(<lvi:iM>IKi:   V.  HOI.l.MAX. 


[1  Term  Kcp.  K).")-,   L'  Smitli's  \a\.  Cii-     'A.] 

TIic  Itottoiii  facls  of  this  cuso,  (the  narrative  of  which 
is  too  coinplicatiMl  to  he  worth  (li'tailiiiu  )  iirc  as  I'ol- 
h)\vs:  SpiMuhast  heiiig  hard  up  toi"  luoiirv,  and  kiiow- 
inuf  the  weak  ui^od-nat  lire  ot"  his  tViciid  Liu'lithoad, 
a>ks  him  1)  .".cccpt  a  hill  oi\xfliaiii:'(>  for  him,  assiiniij^ 
him  thai  ho  will  never  l>i^  called  on  to  pay  it,  and 
that  it  is  re;ii'y  only  a  formality.  Li^ihthead  consents, 
and  though  ho  iii'ls  no  consi(l(>ration  whatever  for  it, 
acce[)ts  a  hill  drawn  on  him  hy  S[».  iidfast.  The  bill 
finally  yets  into  tlu;  hands  of 'I'lirift  man  as  holder,  and 
he  presents  it  to  Lighthead  for  payment,  l^^iiihthead, 
of  cours(>,  dishonors  the  hill,  and  uses  strouLT  lanuuaLi'o. 
Such  l)i'ing  the  stuto  of  the  parties,  Dickcrdikc  v.  BoU- 
himi  decides  that  Thrittman,  the  holder,  can  sue 
Spendfast,  the  drawer,  without  havinji'  previously 
'liven  hin\  notice  that  Lighthead,  tlui  acce[)tor,  has 
dishonored  the  bill,  the  reason  beinii"  that  the  drawer 
never  had  any  ellects  in  the  hands  of  the  drawee,  and 
ther(>f;)re  couJtl  not  Josr   a)i>/f///')ii/  hi/  iiofice  not  being 


§ 


are  liold  l)y  differeiii  courts.  In  Now  York  aiul  ;i  fow  Slates  whicli 
follow  tlio  New  York  rule,  Swift  v  Tysou  is  not  rciiarded  us  correct 
1  iw  on  wliiit  constitutes  a  hoI(lin;i  for  value,  while  in  the  Federal 
courts,  a. 1(1  in  most  of  the  State  courts,  the  doctrine  of  Swift  v. 
Tyson  is  adiruied  and  followed.     See  Big.  Ld.  C'as.  Bills  &  Notes, 

4!*",  lit  SCq. 


158 


LEA1)IX(}    CAfSK.S    S1M''LIFIE1>. 


given.  Ji!m.  •'  The  l;i\v  requires  notieo  to  bo  gl^en," 
Siiid  Bri.LKK,  J.,  "  for  this  reason,  viz.  :  beeause  it  is 
I)rcsunie(l  tliat  the  bill  is  drawn  on  account  ol"  tlie 
drawee's  havinir  eU'ects  of  the  drawer  in  Iiis  hands; 
and  if  the  latter  has  notice  that  the  bill  is  not  ac- 
cepted or  not  paid,  lie  may  withdraw  them  immedi- 
ately. But  if  he  have  no  ell'ects  in  the  other's  luiuds 
then  ho  cannot  be  injured  for  want  of  notice." 

Bickerdil-e  v.  BoUnnin  is  still  riM'oirnized  both  in 
America  and  Kniilan'!  as  the  leadinuj  case  on  tliis  sub- 
ject.  Later  adjudications,  however,  without  attenii)tiiii>- 
to  overrule  it,  do  not  make  the  right  to  notice  de[)end 
upon  the  fact  that  the  drawee  had  at  the  niatui'hy  of 
the  bill,  funds  in  his  hands  of  the  drawei",  ade.juatc  to 
its  payment.  On  the  contrary  the  criterion  is  :  had 
the  drawer  reasoiuthle  grounds  to  expect  that  the  bill 
would  be  honored  ?  ^ 


UNAUTHORIZED   ALTEllATIOXS   VITIATE    THE 

INSTliUMEXT. 


MASTER   V.    MILLER. 

[4 '':'c'rin  Rop.ML'O:  l.'  H.   Hhick.  140:   1  Smith's  Ld.  Cas.  i)35.] 

We  are  not  in  a   position  to   state  whether  the  Mr. 
Miller  who  was  defendant  in  this  action   was  the  same 


110. 


>  See  Hopkirk  v.  Page,  2  Brock.  20;  Big.  Ld.Cas.  Bill  &  Notes, 


\ 


NEGOTIABLK    PAl'EK. 


yj 


Mr.  Miller  who  took  the  bjiiik-note  from  the  robl)or, 
:iiul  had  a  pass!i<;o  of  arms  with  Mr.  liaoo,  of  the  bank  of 
England.  If  so,  ho  is  oiio  of  Iho  most  fortunate  liti- 
gants of  whom  there  is  any  record.  In  the  former 
case,  it  will  be  rememb(M-ed,  ho  was  a  plaintiff,  suing 
on  u  stolen  bank-note.  lie  now  appears  in  the  hum- 
bler ca[)aeity  of  delendant,  having  accepted  a  l)ill  of 
exchange,  and  resisting  [)aym(!nt,  on  the  ground  that 
it  has  been  altered  since  acce[)tance.  It  isn't  tiie  same 
bill,  ho  sjivs,  and  ho  won't  have  anvthini'-  to  do  with  it. 
Tho  history  of  tho  transaction  is  this.  On  March 
2(),  17.SH,  Pc(d  &  Co.,  of  Manchester,  drew  a  bill  for 
£1,000  on  Miller,  payable  three  months  after  date  to 
Wilkinson  &  Cooke.  This  bill  they  delivered  to  Wil- 
kinson &  Cooke,  and  Miller  afl'.-rwards  at^ce^jted  it. 
Wilkinson  &  Cooke  then  imlorsed  it  for  value  to  the 
plaiutitf.  I)Ut,  befoVe  doing  so,  they  quietly  made  one 
or  two  little  alterations,  with  the  object  of  im[)roving 
the  document.  March  2(!th,  tlu-y  changed  into  March 
20th  ;  and  they  stuck  June  2ord  at  tho  top  to  indicate 
that  the  bill  would  become  due  on  that  day.  Tliese 
alterations,  being  to  accelerate  [)aynient  and  unauthor- 
ized, were  held  to  vitiate  the  instrument.  "  When  it  is 
admitted,"  said  Chief  Justice  P^yui:,  -'  that  tho  altera- 
tion of  a  deed  would  vitiate  it,  the  point  seems  to  me 
to  be  concluded.  *  *  *  jf  courts  of  justi"e  were 
not  to  insist  on  bills  being  strictly  and  faithfully  ke[)t, 
alterations  in  them  highly  dangerous  might  take  i)lace, 
such  as  the  addition  of  a  cipher  in  a  l)ili  for  £100,  by 
which  the  sum  miirht  l>e  chanixed  to  £1,000,  and  the 
holder  having  failed  in  attempting  to  recover  the  £1,000, 
miirht  afterwards  take  his  chance  of  recoverin<r  the 
£100  as  the  hill  ori<rinallv  stood.  But  such  a  proceed- 
ing  would  be  intolerable." 


'1 


ICO 


LKADINO    rASK><    SI  M  I'M  11 1.l ) . 


XKOLKiEXci:  IS'  nuAwixa  chuck. 


voi:\<i  V.   (iitoTi: 


[I  I5ii 


Mr.  Vinmi;  \v;i-i  ;i  r;i>li  l>ui  lilxTul  hu>l);iii<l.  \Vh(Mi 
lio  wt'iil  iiw.iv  from  liomn  Ik^  ii^cd  1')  l.';ivi'  M.-mk  checks 
siirii('<l  for  ^^I•s.  Voiiiiir  to  till  up  nccoi-trmu:  lo  her  iic- 
<'('.s>.it U's.  ( )ii  one  ol'  llic>i'  o('c:i->io:H  she  r.''|iicst(Ml 
lu'i*  liiishaiid's  clerk  lo  till  out  ;i  check  toi"  the  simi  ot' 
.£r)(li  Mild  'J>.  'I'Ik'  clerk  did  -o,  writiiiLC  t  hti  *•  lll't y  " 
with  !i  small  letter  in  the  middle  (d"  tlie  line,  and  })ut- 
tint.*:  the  <i;iiircs  T)!).  '2<  a  uood  di-taiu'o  to  the  riji,ht 
of  the  piintetl  1'.  lie  sJi(ia(m1  it  to  her,  and  sho  told 
him  to  o'o  and  draw  the  mone\'  iVom  the  hank,  lie 
went  :  hilt  he  stoppi'cl  loiiu'"  enoiiuh  on  his  way  lo  in- 
sert at,  tilt!   Ix'ii'iiiniiiLr  ol"  the  line    in    whiidi   tiie  wdril 


fiCtv 


w 


as  written,  the;  woi^U  •'  llnce  huiidretl  and 


and  he  (h-l'tly  jilaced  the  linnrt;  .'{  l)et\v«'en  tin;  £,  and 
tlu!  no.  He  liad  now  a  check  for  £l>.">0  2>,  which  the 
bank  paid  witliont  suspicion,  and  i^lJOO  of  which  he 
j)()ckete(l.  Then  Mr.  Voniii,^  tried  to  throw  tho  h)ss  on 
the  hank  hiit  he  (hd  not  siicccicd,  for  this  wasthejudi;- 
eiit    ol"  the    coiiil  :   •''  A   l)anker   who   pjiys   a   forged 


in 


check  IS  in  Li'cncral  ooniid  to  pav  the  amount  airaiii  to 
liis  customer,  hecanse  h(!  p.iys  without  antliority,  Jind 
it  is  his  duty  to  he  ac(iuainte(l  with  his  customer's  liand- 


wntinir. 


Yet  if  it  1)(?  tlie  fault  of  the;  cus- 


tomer that   the  hanker  p;iys  moro  than  ho  ouirht,  ho 


lied 


cannot  i)ocalle(t  on  to  [)aya;j:aiu. 


Hero  tho 


ir 


M:»i(>ri.\Mi.i;   i'\ri:i!. 


ICl 


lil;mu'  was  ;ill  on  one  side,  and  Young  must  >ntrcr  for 
liis  own  ncuTiLTcnco."  Cliicl'  Justice  Bkst  snj:':j,i'sti'(l 
1  wo  ujaxiuis  wliicli,  it'  Mi"  Young  had  only  known  in 
tinic,  would  Iiavo  saved  hini  a  good  many  liundi'cd 
iloilai's.  I'Mrst,  always  write  your  checks  well  to  the 
left  side  :  second,  never  let  your  wife  ha\X'  an\thing  lo 
do  with  \()ur  checdv  book. 


■§ 


STOPPAdK     IX    TUAXSJTU. 


LICKnAltKOW   V.   31ASOX. 


[L'Tcnii  Iv'cp.  <;:•.;   1  Siiiitirs  l.d.  Cas.  flii.] 


'I'he  orii:inalor  of  tliis  litiiration  was  one  Freeman, 
of  liotterdam,  who  had  the  iiuihicity  to  hecomo  bank- 
rupt and  confound  tlu^  transactuuis  of  a  groat  many 
honest  [)eo))le.  The  tlra iinilh  persoiue  are  somewhat 
nuuu'i-ous,  but  the  student  will  probably  liiul  tlie  fol- 
lowing account  reascMiably  clear  and  correct. 

Freeman  sent  an  orch-r  to  Messrs.  Turiugs,  of  Mid- 
dleburg,  to  shii)  a  (piautity  of  corn  to  Liverpool.  This 
order  Messrs.  Turiugs  were  rash  enough  to  execute  ;  for 
liiey  theu  (  ousidered  Freeman  to  be,  if  not  "  the  richest 
merchant  in  Rotterdam,"  at  all  events,  :i  safe  and  sol- 
vent person.     On  July  22,  17S(),  ^Messrs.  Tnrings  put 

the   corn   on   board   the  ship   Endeavour,  whereof  the 
11 


M 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


Ik 

150 


1^    IM 
1^    IS 

20 


U& 


1.8 


IL25  i  1.4   i  1.6 


V 


^ 


/2 


*: 


Photographic 

Sciences 

Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14SS0 

(716)  872-4503 


1G2 


LEADIXG    CASES    SIMPLIFIED. 


ill 


.5;:*, 


i  I 


master  was  a  ]Mi\  Holmes.  It  is  the  duty  of  a  master 
when  he  sets  out  on  a  voyage  like  this  to  sign  hills  of 
ladnig,  by  way  of  acknowledging  that  he  has  got  the 
goods  on  board.  Holmes  signed  four  of  these  bills  of 
lading  (usually,  it  may  bo  remarked,  only  three  are 
signed)  ;  and  of  the  four,  one  he  pocketed,  two  were 
indorsed  in  blaidc  by  Turings  &  Co.  and  sent  to  Free- 
m:iu  with  an  invoice  of  the  goods  shipped,  and  the 
.;:rth  Avas  retained  by  ^lessrs.  Turings. 
The  sound  ship.  Endeavour,  had  not  set  sail  very 
Jonuf  when  tidinufs  came  to  the  ears  of  the  Turmus  that 
Freeman  had  ])oeonie  ])ankrupt.  Rising  to  the  occa- 
sion, they  innnediately  sent  olF  the  bill  of  lading  that 
remained  in  their  custody  to  Messrs.  ^Nlason  &  Co.,  of 
Liverpool,  Avith  a  special  indorsement  to  deliver  the 
corn  to  them  for  Messrs.  Turings'  l)enefit.  Pursuant 
to  this  special  indorsement  Mr.  noiines,  when  he  ar- 
rived at  Liveri)()()l,  delivered  his  cargo  to  the  Masons. 
In  the  meantime,  however,  and  bel'ore  he  became 
bankrupt.  Freeman  had  sent  his  two  bills  of  lading  to 
Messrs.  Lickbarrow  dulv  neirotiated  for  a  valuat)l(> 
consideration.  Messrs.  Lickbari'ow,  therefore,  Ave;'v> 
anvthini;  but  i)leased  to  find  that  Mason  &  Co.  had  ""ot 
hold  of  the  corn,  and  they  brought  this  action  to  try 
and  make  them  give  it  up.  In  this  they  were  success- 
ful. Judgment  Avas  given  for  the  plaintiffs,  on  the 
ground  that  {xhona  fide  assiu:nment  of  the  bills  of  lad- 
ing  defeats  the  vendor's  right  to  stop  in  transitu.^ 


'  TIr-  Urst  rule  laid  down  in  tliis  case  is  to  tliis  effect:  — 

When  a  man  l)ecoines  banlvi-upt  his  goods"arc  divided  amongst  his 

creditors,  nobody  jietting  tlie  full  amount  tiiat  is  due  to  him,  but 

everybody  getting  a  proportion  of  it.     Thus,  the  person  who  has 

most  recently  been  rash  enough  to  intrust  the  trader  with  goods  tni 


NEGOTIABLE   TAPEIl. 


163 


STATUTE  OF  LIMITATIONS. 


AVHITCOMH   V.  WHITIXG. 

[Dougl.  r)52;   1  Smith's  Lil.  Cas.  703.] 

Whiting  iiiul  Jones  niiulo  ;i  joint  {uul  several  promis- 
sory note,  which  in  the  course  of  time  ciimo  into  the 
hands  of  the  pliiintill".  Eight  or  ten  years  after  the 
clay  on  which  it  Avas  made,  the  plaintiff  sued  Whiting, 
who  had  long  aijo    forgotten    his    little    undertakini;. 


credit  is  tiie  most  to  ))e  pitied,  for  wliat  v\;s  yesterday  all  Ids  own, 
is  to-day  part  of  tlie  general  fund  from  wliieli  eacli  creditor  derives 
tlie  proportion  of  ins  debt.  To  prevent  tins  injustice  of  one  man's 
goods  l)eing  used  to  pay  anotlier  man's  debts,  tlie  doctrine  of  stoppage 
in  trmisitn  is  nitrodnced.  Therefore,  altliough  tlie  vendor  has  sent 
off  Ins  goods,  and  parted  with  the  property  in  them,  to  the  vendee 
on  a  credit  sale,  he  may,  nevertheless,  on  hearing  of  that  gentle- 
man's bankruptcy  or  general  inability  to  pay  his  debts,  stop  the 
goods  and  retake  possession  of  them  at  any  time  while  they  are  on 
their  journey  to  him,  and  have  not  come  into  his  actual  possession. 
The  riglit  to  stop  is  personal  to  the  vendor  or  consignor.  It  cannot, 
for  example,  be  exercised  by  a  surety  for  the  price  of  the  goods. 
Hut  the  vendor  may,  at  any  time  before  the  transitus  has  ended, 
ratify  the  act  of  a  stranger  who  stofis  the  goods.  The  great  ques- 
tion ill  most  t-toppaijn  in  trnnnUn  cases  is,  was  tlie  journey  at  an  end 
or  not?  The  goods  are  on  the  jonrncn  as  long  as  they  are  in  the 
hands  of  the  carrier  as  such;  but  the  carrier  may  hold  them  as  bailee 
for  the  vendee,  as  when  the  latter  pays  him  a  rent  for  warehous- 
ing them. 

The  second  rule  in  this  case  is,  that  if,  while  the  goods  are  in 
transitu,  the  vendee  indorses  the  bill  of  lading  (as  Freeman  did)  to 
a  person  who  takes  it  in  the  ordinary  v,  ay  of  business  and  in  per- 
fect good  faith,  the  vendor's  right  to  stop  is  at  an  end.  Siiirley  Ld. 
Cas.  8G, 


■:3 


H 

m 


«ll 


1G4 


LEADING   CASES    SIMPLIFIED. 


"Yes,"  siiid  AVhiting,  "  th:it  certainly  must  be  my 
si<'-ii!itur«,  and,  now  you  come  to  mentiou  it,  I  do  re- 
member  sometbing  about  a  promissory  note.  But, 
3'ou  see,  tbe  date  of  tliat  note  is  more  tliaii  six  years 
a<n) :  so  I  bave  the  law  on  vou."  "That's  all  very 
fine,  Mr.  Whiting,"  replied  the  holder  with  a  chuckle, 
'•  but  3'ou  may  be  interested  to  learn  that  Mr.  Jones, 
the  gentleman  whose  name  is  with  yours  on  this  bit  ot" 
paper,  has  paid  interest  on  it  within  the  hist  six  years  ; 
and,  if  I'm  not  pretty  well  mistaken,  that  takes  it  out 
of  the  statute  as  against  you  as  well  as  against  him.^' 
And  so  it  proved.  "  Payment  by  one,"  said  Lord 
Mansfield,  (,\  J.,  *'  is  payment  for  all,  the  one  acting 
virtually  as  agent  for  the  rest,  and  in  the  same  manner 
an  admission  by  one  is  an  admission  by  all,"  "  The 
defendant,"  said  Willes,  J.,  "  has  had  the. advantage 
of  the  partial  payment,  and  therefore  must  be  bound 
by  it."  In  explanation  of  this  last  remark  it  may  be 
suggested  that  })rol)ably  all  the  ten  years  Jones  was 
punctually  paying  the  interest,  so  that  Whitcond)  had 
no  desire  to  enforce  payment  of  the  [)rinci[)al.  Then 
Jones  suddenly  foundered  in  the  ocean  of  insolvency, 
and  it  became  necessary  to  sec  whether  the  other  joint 
contractor  was  any  good. 


liii 


LANDLORD    AND    TKNANT. 


](J5 


XT. — LAXDLor.D  AXD  Texaxt. 


PAYIN(r    RENT   FOR    DESTROYED    PREMISES. 


HALLETT  v.  WYLIE. 


[3  Johus.  44;  3  Am.  Dec.  457.] 


Mr  Hallott  loused  a  hou.sc  from  Mr.  Wylic  for  the 
term  of  four  yoiirs.  The  lease  provided  that  the  rent 
should  1)0  paid  quarterly,  and  that  the  tenant  should 
pay  all  taxes  aud  assessments  and  keei^  the  inside  of 
the  house  in  irood  order.  Mr.  Hallott  took  up  his 
ahode  in  his  now  (piarters,  and  was  very  well  salistiod 
until  one  day  in  Decembcu-,  barely  nine  months  after 
he  had  taken  [)ossession,  the  house  was  burned  down, 
and  he  had  to  rent  another  one.  The  landlord  waited 
!i  year,  and  then  sued  I\[r.  Ilallett  for  four  quarters' 
rent,  to  which  that  gentleman  replied  that  ho  had  paid 
his  rent  promptly  as  long  as  the  house  stood,  but  he 
would  be  blest  if  he  would  i)av  rent  after  that  time. 
"  No  house,  no  rent,"  was  his  motto.  This  certainly 
appeared  just,  but  Wylie,  who  w;;s  something  of  a 
Scrooge,  went  '  )  law  about  it,  and,  we  regret  to  say, 
was  successful.  The  court  gave  the  tenant  their  sym- 
pathy and  the  landlord  his  money. 

"  This  is  a  hard  case  upon  the  defendant,"  they  said. 


s 


f( 


►I* 


•  *  ■  * 


'  •  '••ii'  ( 

1 1  If 


■M 


I 


i 


166 


ij:ai)I.\(;  ('A!>;i:s  simi-i-ikied. 


*'  and  if  the  court  eoukl,  consistently  with  settled  and 
est:il)lishe(l  principles,  relieve  liini  against  the  payment 
of  the  rent  in  question,  \vg  should  most  willingly  do  it. 
But  it  can  not  be  done  without  overturning  a  series  of 
decisions  td  which  this  court  is  bound  to  conform. 
Wo  sit  here  \jus  dare,'  not  '■Jus  facevo."^  Wo  think 
it  may  safely  be  said  that  there  is  not  Ji  ease  in  the 
hooks  where  the  destruction  of  the  demised  premises 
by  fire  has  been  held  to  excuse  tiio  tenant  from  the 
payment  of  the  rent  on  an  e>  ress  covenant  ;  but  in 
every  case  where  a  del'ence  on  Jiiat  ground  has  been 
attempted,  it  has  failed.  The  law  on  this  point  has, 
in  one  of  the  late  cases  in  England,  been  ctmsidered 
so  fully  established  that  the  court  would  not  evon  hear 
an  argument  respecting  it." 

Moral  :  ^V^hen  you  sign  a  lease  of  a  house,  don't 
forget  to  htive  it  provide  that,  in  case  the  building 
is  burned  down,  or  rendered  uninhabitable,  the  rent 
shall  cease  to  be  payable. 


NO  WARnA:^TY  AS  TO  COXDITTON  OF 
PREMISES. 


CLEVES  V.   Wir^LOl  OHBY. 

[7  Hill,  s;!.] 

The  dwelling  No.  3.  Linden  Itow,  Brooklyn,  was  for 
rent,  and  Mr.  Cleves,  who  was  hunting  for  a  house, 


'  "To  annoimcc  the  huv,  uotlo  manufacture  it." 


LANDI.OUD  AND  TENANT. 


167 


leased  it  for  tivc  years  jit  a  3'oarh'-  rent  of  $300,  pay- 
al)le  (iiiarterly.  IIo  was  in  such  a  Imri'v  to  get  tliein 
that  he  Avas  not  i)arti('uhir  to  exaiuiue  the  premises. 
Al'ter  tlie  lease  was  signed  and  he  was  prepared 
to  move  in,  he  found  tliat  it  was  not  Avhat  one 
would  wish  for  a  residence.  The  house  Avas  in  horri- 
l)ly  bad  re[)air,  the  cisteru  leakcnl,  the  cellars  were  filthy 
and  foul  —  in  fact  it  Avas  not  a  i)lace  to  take  a  1am- 
ily  into  at  all.  ]\Ir.  Cleves  suggested  to  the  hmdlord 
that,  unless  he  would  repair  and  clean  it  u[),  ho  would 
not  move  in.  This  tlie  landlord  refused  to  do,  so 
]\Ir.  Cleves  rented  and  occui)ied  another  house.  At 
the  end  of  thrc^e  montlis  there  came  u  bill  for  a  quar- 
ter's rent  of  No.  3,  Linden  Row,  Avhich  Mi.  Cleves, 
verv  niiturallv,  refusetl  to  i)aA\  Then  the  case  came 
into  court,  and  Mr.  Cleves'  only  plea  Avas  that  the 
house  Avas  unlit  for  occupation.  But  the  court  re- 
fused to  listen  to  it.  They  held  that  tlicie  Avas  no  im- 
plied Avarranty  on  the  part  of  the  lessor  of  a  dwelling- 
house,  that  it  is  fit  for  habitation.  "  It  is  quite 
unnecessary,"  said  Beakdslkv,  J.,  "  to  look  at  the 
connnon-law  doctrine  as  to  implied  covenants  and  Avar- 
ranties,  or  its  modification  by  statute.  That  doctrine 
has  reference  to  the  title  and  not  to  the  quality  or  con- 
dition of  the  property.  The  maxim  caveat  emptor  (let 
the  purchaser  bcAvare)  applies  to  the  transler  of  all 
property,  real,  personal  and  mixed,  and  the  purchaser 
takes  the  risk  of  its  quality  and  condition,  unless  he 
protects  himself  by  an  express  agreement  on  the  sub- 
ject." 


3 


If;  8 


I.KADIN'O    CASES    i^IMI'LIFlEO . 


EXCEPT  IT  IS  A  FU UN  I  SUED  HOUSE. 


S3TITH  V.  3IAKRABLE. 


Ill* 
illf 


:     W 


[11  Mee.  &  W.  5.] 

Briijrlitoii  is  a  faslilouiiblc  Eiiijlish  watcrin<>:-i')lacG, 
and  Sir  Thomas  ^Nlarrahle,  who  Avishod  to  spend  tlic 
season  there  with  his  family,  rented  a  furnished  house 
of  Mr.  John  Snlitii,  ior  a  eertain  term.  Tlie  student 
will  note  that  it  was  a  fav)iis!i''d  house  he  rented. 
On  the  KUh  of  Se[)teml)er  the  j\Iarra])le  family  moved 
in.  Tiireo  days  later  xMrs.  John  Smith  reeeived  the 
tbllowini''  l)illet :  — 

"  5  Rhttxswicic  Place,  September  19,  1842. 
'^  Lady  ]Marral)le  informs  ]\Irs  Smith  that  it  is  her  de- 
termination to  leave  tl'?  house  in  Brunswick  Place  as 
soon  as  she  can  take  anotiier,  paying  a  week's  rent,  as 
all  the  l)edrooms  occupied  but  one  are  so  infested  with 
bu<rs  that  it  is  impossible  to  remain." 

Tlio  landlord  sent  a  man  to  drive  the  bugs  out,  but 
thci-o  were  too  many  for  him  and  the  family  did  leave 
as  threatened.  Tliis  was  Mr.  John  Smith's  action  for 
tlio  rent  mider  his  agreement  with  Sir  Thomas.  The 
iurv  having  found  that  the  bnus  were  the  real  caiiso  of 
the  moving  out,  the  Court  of  Exchequer  decided  that 
they  did  the  })roper  thing  and  Mr.  John  Smith  was 
defeated.  "  A  man  who  lets  a  ready  fnrnished 
house,"  said  Lord  Ahingeii,  C.  J.,  "  does  so  under  the 
implied    condition  or    obligation  —  call   it    wdiat   you 


LAXDLOIM)    AND    'I  lONANT. 


i(;o 


will  —  that  tlio  house  is  in  a  fit  state  to  he  iiihal)ited. 
Suppose,,  iustcad  of  the  particular  nuisance  which 
existed  iu  this  case,  the  tenant  discovered  the  fact, 
urdvUDWii,  perhaps,  (o  the  landlord,  that*  lodgers  had 
p'/eviouslv  quitted  the  house:  in  consoqueiicc  of  having 
ascertained  that  a  person  had  recently  died  in  it  of 
plague  or  scarlet  fever,  would  not  the  hiw  imply  that 
lie  ouglit  not  to  stay  in  it?  I  entertain  no  doubt  what- 
ever on  the  subject,  and  think  the  defendant  was  fully 
justified  in  leaving  these  premises  as  he  did  ;  indeed,  I 
onlv  won(hu'  that  ho  remained  so  lon'jf,  and  ijave  the 
huidlord  so  much  op[)ortunity  of  remedj'ing  the  evil,"  ' 


EFFECT  ON  TEXAX2'  OF  MOUTGAGE  BY  LAND- 
LORD. 


KEKCH    V.  IIAI^I.. 


[I  Douiil.  21  ;    1  Siiiith'.s  L;l.   Cas.  (mI.] 


The  owner  of  a  warehouse  in  the  city  of  London, 
moitgaged  it  to  ^Ir.  Keech,  but  remained  in  posses- 
sion. Soon  afterwards,  without  savini;:  a  word  to  Keecli 
on  the  subject,  he  leased   it   for  seven   years   to  Hall. 


'  Tho  prliicli)lo  of  this  case  was  expressly  afllrmecl  in  the  late 
case  of  Wilson  v.  Fincli  llatton,  2  Exch.  Div.  o.W.,  where  the  tenant 
of  a  furnished  honse  was  held  to  he  jnstitled  in  leaving  on  account 
of  defective  drainage.     And  see  Dutton  r.  derrlch,  t)  Cush.  89. 


170 


LEADINd    CASKS    SIMI'LIFIKD. 


€ 


Keech  was  very  iiuligiiaiit  at  this.  IIc^  said  the  mort- 
gagor had  cxcfedc'd  his  rights,  having  no  l)usiiu!ss  to 
do  such  a  thing  witlioiit  coiisiilling  him,  and  that  Hall 
was  no  l)etter  than  a  trespasser,  and  could  he  ejeetod 
without  notie»\  And  the  Judges  coincicU'd  with  his 
view  of  tlie  matter.  At  lirst  sight  the  tendcr-h(!arted 
student  mav  think  this  a  little  rough  on  Hall  ;  hut  it  is 
not  really  so  ;  lor  it"  the  man  had  taken  the  trouble  to 
make  proper  incpiiry  he  would  soon  have  discovered 
that  the  person  he  was  dealing  with  was  only  a  mort- 
gagor, and  therefore  that  it  would  he  a  risky  thing  to 
take  a  lease  from  him. 


II"'' 

I     Sv " 


i  I 


MOSS    V.    GAL1.I3IOUE. 

[1  Doiigl.  27i);   1  Smith's  Ld.  Cas.  (iS!».] 

Mr.  Harrison  hegan  the  year  1772  by  letting  a  house 
to  IMoss  for  twenty  y(Mrs  at  the  rent  of  £40  a  year. 
Times  were  bad  with  Mr.  Harrison,  and  in  jNIav  of  the 
same  year  he  mortgaged  the  property  to  a  Mrs.  Galli- 
moro,  a  nice  old  hidy,  who  wanted  eligil)le  security 
for  the  little  fortune  which  her  late  husband  had  left 
her.  Moss  was  not  in  the  least  aftected  by  this  mort- 
gage of  the  leversion.  He  went  on  quietly  living  in 
the  house,  and  paid  Harrison  his  rent  pretty  regularly 
up  to  November,  1778,  when  he  was  £28  behindhand. 
At  that  time,  Harrison,  having  sunk  deeper  and 
deeper  into  the   mire,  became  bankrupt,  being  at  the 


LANDLOUD   AND   TENANT. 


171 


•t- 
to 

ill 

Ml 

is 
(1 
is 
() 

a 


fimo  iiulebtetl  to  ^Irs.  Galliinoro  for  interest  on  the 
mortffago  in  u  .sum  gre:iter  tlitin  £28.  Mrs.  Galliinore 
iTiive  Moss  notice  of  her  being  mortgagee  ,and  told  him 
to  pay  to  her  the  £28  which  ho  unciuestionably  owed 
to  somebody.  Moss  showed  no  disposition  to  yield  to 
this  demand,  nnd  finally  the  old  huly  made  a  raid  U[)on 
his  chairs,  tables,  grandfather's  clocks,  etc.  This  dis- 
traint Moss  considered  a  tresj)ass,  and  bronght  this 
action  accordinijlv.  It  was  held,  however,  that  the 
worthy  Mrs,  Gallimore  was  (jnite  justified  in  distrain- 
in"",  for  a  morti^aijee,  after  giving  notice  of  the  mort- 
gage  to  a  tenant  in  possession  under  a  lease  prior  to 
the  mortgage,  is  entitled  to  the  rent  in  arrear  at  the 
time  of  the  notice  as  well  as  to  what  accrues  after- 
wards, and  he  may  distrain  for  it  after  such  notice. 


:3 


USAGES  AND  CUSTOMS. 


WIGGLES  WORTH  v.   DALLISOX. 


[Dou;,'l.  201;  1  Smith's  Ld.  Cas.  1)00;  Lawsoii,  Us,  &  C.  1(50.] 


Wiiiarlesworth  was,  as  his  bucolic  name  alone  might 
show,  a  farmer.  By  lease  dated  March  2,  1753,  one  of 
the  Dallison  family  let  him  have  a  field  in  Lincolnshire 
for  twenty-one  j^ears.  In  the  last  year  of  his  tenancy, 
though  he  knew  that  he  had  to  give  up  the  land  almost 


17  2 


I,K\I>I\(}    (WSKS    MMI'MI'IKI). 


li 


iininediiitciv,  lio  sowed  his  Held  wi'Ji  coi'ii.  In  doiiii; 
wli.'it  iniirlit  seem  iil  lirst  siirlit  ti  i:is!i  mikI  iMipi-ovidcnt 
!U't,  Mr.  Wiijglosworlh  w:i.s  rclyiii;^  on  a  certain  local 
cnstoin,  wliicli  entitled  an  ontjioinj^  tonanl  of  lan<ls  to 
his  way-going  crop,  that  is,  to  the  corn  left  standing 
and  growing  at  the  expii-ation  ot"(ho  lease,  nallison's 
answer  to  this  claim  was  that,  if  any  such  custom 
existed  at  all,  it  had  no  a[)olication  to  tlr;  pi-esent  casi^ 
■where  tiie  terms  between  landlord  and  temmt  had  been 
carefully  drawn  up  in  a  l(>aso  hy  deed,  and  no  mention 
made  therein  of  any  custom.  TlKM-oiirt,  however,  de- 
cided in  favor  of  tin;  custom,  Ijord  Mansfimm)  remark- 
ingthat,  while  it  was  just  and  roasonaUlo  and  for  the  de- 
bcnetit  of  agriculture  tliJt  ho  who  sows  sliall  reaj),  it 
did  not  alter  or  conti'adict  tho  agreement  in  the  h'aso, 
but  only  sui)cradded  a  I'ight. 


LEASES  FOR  MORE  Til  AX  THREE   YEARSA 


m 


KIGGE  V.  IJELL. 

[5  Term  Kf|'-  t'h  -  Sinilh's  Ld.  Cas.  177. J 

Bv  parol  merelv,  lliiiire  let  a  farm  in  Yorkshire  to 


'  Our  friend,  the  Statute  of  Francis,  eoines  to  tlie  front  again  to 
regulate  deal  in;is  inland  as  well  as  in  "goods,  Avares,  and  nierelian- 
dise."  By  the  first  section  of  that  important  law,  it  was  enaete^l 
that  (with  the  exception  of  leases  for  a  term  not  exceeding  three 
years)  all  leases  of  lands,  tenements  and  hereditaments  not  put  in 
writing  and  signed  by  tho  parties  or  their  agents,  should  have  only 
the  lorco  and  effect  of  leases  at  will. 


LANDLOItl)    AM)    TKNANT. 


178 


Hell  for  soveii  years,  iuul  Boll  ciitorcd  jiiid  paid  ront. 
IJut  tlio  tonant  tlid  not  j.tivo  satij^faciion,  and  liiuijo  do- 
Icnuiiiod  to  in't  rid  of  liiiii.  Viv  the  tonus  of  tlio 
airroiuiuMil  IV-Jl  was  to  jjfo  nut  at  C!!andloinas  ;  hut 
IJigrro'.s  view  was,  as  tho  leas;',  Ixmiu;  for  inoro  than 
lliroo  years,  and  yet  iu)t  in  wiitiii^ii",  as  tli*^  Slatulo  of 
Fi-iiiids  recjuiroij,  ofjorato  '  iiicroly  as  a  tenancy  at 
will,  ho  conhl  make  tho  man  (j  'it  wlien  ho  i)h'ased, 
and  Avas  not  l)(>nnd  by  tho  tonus  they  liad  agixvd  on. 
In  tliis  view  he  lonnd  himself  mist  al;en,  for  it  was  held, 
that  "  tlioni;h  tho  agreement  ho  void  hy  the  Statute  of 
Frauds  as  to  tho  ihirat/on  of  i\w  lease,  it  Diu.'it  iTt/uJa(e 
the  terms  on  wliich  the  tcndunj  shU^'ikIh  l\i  olJici-  rf'spects, 
as  to  tho  rent,  tho  time  of  tho  year  when  tho  tenant  is 
to  quit,"  etc. 


CLAY  lOX   V.  IJI.AKEY. 

[8  Torni  Krp.li;  '2  Smitirs  Ld.  ('as.  Iso.] 

Also  l)y  parol  merely,  Mr.  dayton  let  Blakey  some 
land  for  twentv-one  years,  and  l^lnkey  entered  and 
paid  i"ent.  Two  or  three  years  afterwards  his  land- 
lord gave  him  notice  to  quit,  and,  as  lie  treated  such 
notice  with  supreme  eontemi)t,  sued  him  for  double 
ront  for  holding  over.  To  this  claim  Blakey  raised 
the  somewhat  cool  defence  that  (I)y  virtue  of  sect.  1  of 
the  Statute  of  Frauds,  which  directs  that  any  lease  for 
more  than  three  years,  not  reduced  into  writing,  shall 


4 


i^ 


174 


L/  \DIN(}    CASES    SI.MPLIFIKD. 


operate  only  as  a  tenancy  at  will)  be  was  only  a  ten- 
ant at  will,  and  onght  to  have  been  so  described  in  the 
plaintiff'^  declaration.  It  was  held,  however,  that 
>/Blakey  was  not  a  tenant  at  will,  but  a  yearly  tenant, 
and  therefore  the  plaintiff's  pleading  was  good  enough 
to  hit  him. 

This  decision  seems,  at  first  siffht,  rather  extraordin- 
ary.  The  Statute  of  Frauds  distinctly  says,  that  all 
leases  by  parol  for  more  than  three  years,  shall  bo  ten- 
ancies at  Avill  only.  The  decision  intervenes  and  says  : 
*'No,  they  shall  bo  yearly  tenancies,"  thus  puttingthe 
tenant  in  abettor  position  than  the  statute  left  hiiu  in. 
The  accepted  explanation  is  that  tho  statute's  inten- 
tion was  that  the  estate  should  be  an  estate  at  will  to 
begin  icith,  but  that  when  once  created,  it  should  be 
liable,  like  any  other  estate  at  avIU,  to  be  changed  into 
a  tenancy  from  year  to  year  by  payment  of  rent,  or 
anything  showing  an  intention  to  create  a  yearly  teu- 
ancy.  But  if  there  were  uo  circumstances  showing 
such  intention,  the  estate  would  remain  an  estate  at 
will. 


AGIUCULTUUAL  FIXTURES. 


Ill 


ET^W  ES  V.  MAWE. 

[3  East,  38;  2  Smith's  Ltl.Cas.  228.] 

ToAvard  the   close  of  the   last  century,  Elwes  let  a 
farm  at  Bigby  in  Lincolnshire  to  INIawe  for  twenty-one 


LANDLORD  AND  TKNANT. 


175 


11- 
10 
It 

t, 

h 


years  ;  and  during  his  tenancy  Mawe  conceived  and 
carried  out  various  improvements  for  the  more  profita- 
ble occupation  of  the  land.  He  built  a  beast-house,  a 
carpenter's-house,  and  a  pigeon-house,  among  other 
things.  By-and-by  the  twenty-one  years  came  to  an 
cPid,  and  the  time  came  for  3,Li\ve  to  go.  A  few  daj's 
before  leaving,  he  set  his  laborers  to  work  to  pull  down 
the  l)east-house,  and  the  carpenter's-house,  and  the 
pigoou-house  and  Avhatever  else  he  had  erected,  and 
carted  them  all  away,  leaving  the  premises  in  just  the 
sauie  nude  condition  they  were  when  he  entered.  When 
Ehves  heard  of  this  he  was  very  angry.  He  said 
Mawe  had  no  right  whatever  to  take  away  fixtures,  it 
was  ilat  burglary  and  so  on,  and  finally  he  brought  an 
action  for  waste.  There  was  no  doubt  that  by  the  old 
common  law  whatever  a  lessee  annexed  to  the  freehold 
during  his  term,  unless  it  was  a  trade  fixture,  became 
the  landlord's  when"  he  left,  but  ^Nlawe's  counsel 
argued  that,  considering  the  cai)ital  farming  required 
uow-a-daA's,  and  the  elaborate  implements  employed 
in  the  cultivation  of  the  land,  airriculture  was  overv  bit 
as  nmch  a  trade  as  clock-making  or  iron-monirerinir. 
Moreover,  they  produced  authorities  which  showed 
that  hot-houses,  posts,  sheds,  colliery-engines,  and  the 
like,  had  in  various  cases  been  held  to  be  rem()val)le 
by  tenants  as  being  trade  erections  ;  and  they  defied 
the  plaintirt'to  show  the  difference  between  such  things 
and  the  tilings  the  defendant  had  set  up.  All  this  was 
very  plausible,  but  the  judges  came  to  the  conclusion 
that  Mawe  had  no  riiilit  to  remove  his  erections. 
They  said  it  would  be  a  "  dangerous  hmovation  "  to 
cnll  agriculti"''e  a  trade,  and  that  the  hot-houses  and 


i7(; 


LKADIN(!    CASKS    SIMl'I.lI'IKI). 


a 


the  other  erections  the   deleiidaiit  made  so  nuieh    of, 
were  all  more  or  less  connected  wilh  trade. 

An  aiionyinous  modern  poet  has,  iu  ijlowinix  liexa- 
meters,  described  the  great  trial  wherein  :  — 


Elwes,  the  shrewd,  was  plaintiff,  and  Mawo,  tlie  thrifty,  defendant, 
Muwo  was  lessee  from  Elwes  of  hauls  in  tlie  connty  of  Lincoln, 
Messuage,  ont-houses,  stables  and  barn,  in  the  jjarish  of  Uigby; 
Mavve,  the  thrifty,  looked  round  him  and  scanned  those  premises 

wisely, 
Full  six  ycmrs  he  scanned  them,  beholding  the  farm's  occupation 
'Minislied  in  nse  and  wortli  for  want  of  convenient  buildin'^s  : 
Therefore  he  laid  to  his  hand, and  setup  those  convenient  buildings. 
All  at  his  own  expense,  a  carpenter's-shop  and  a  beast-house, 
Houses  of  fuel  and  carts,  and  a  pump-house,  of  brick  and  mortar, 
Founded  fast  in  the  ground,  and  tiled,  and  of  brick  were  the  pillars. 
So  he  possessed  his  farm,  and  I'ejoiced  in  his  useful  buildiiigs, 
He  and  all  men  and  all  beasts  of  the  field  in  the  parish  of  IJigby. 
Time,  which  men  count  by  moons,  but  the  gods  by  terms  and  vaca- 
tions, 
Stood   not  nor   halted  the  while,  and  the   lease  drew  nigh  to  its 

ending. 
Therefore,  did  ^Nlawc,  the  thrifty,  bespeak  his  own  heart  and  take 

counsel. 
This  way    and    that     revolving  the    cost    and  the  gain,   and   the 

chances 
„. Weighing,   and  thus   at  the    last  to  himself   did    his   heart   make 

answer : 
"Lo,    now,  1  leave  these   lands,  and   shall   be  to  this  farm  as   a 

stranger ; 
Soothly  it  little  shall  profit  me  then  if  the  houses  I  builded 
All  at  mine  own  expense,  the  carpenter's-shop  and  the  beast-house. 
Houses  of  fuel  and  carts,  and  the  pump-house,  of  brick  and  mortar, 
Joy  to  all  men  and  all  beasts  of  the  field  in  t)ie  parish  of  Uigby, 
Stand  t!iere  after  my  time,  and  be  left  a  possesion  to  Klwes : 
Nay,  but  I  surely  will   move  their  foundations,  digging  around 

them, 
Raze  their  walls  and  their  stuff,  the  goodly  liricks  and  the  mortar, 
Keep  for  a  gain  to  myself  and  leave  the  land  as  I  found  it." 
So  then  in  all  things  he  did  in  such  wise  as  his  heart  had  coun- 
selled. 


I,  A 
ft- 


Ilii 


LANDLORD    AND    TENANT. 


177 


Razed  those   walls,  and   moved  the    foundations,  diu^;inm  around 

them, 
Carted  away  the  stuff  for  himself,  the  bricks  and  the  mortar. 
Elwes,  tlie  shrewd,  sat  aloft  and  beheld  from). a  height  of  rever- 
sion 
These  things  wrought,  and,  beholding,  his  anger  was  kindled  within 

him. 
Anger  that  moved  him  to  deeds  of  raiglit  and  to  Lincoln  assizes. 
Tliere  he  declared  against  Mawe  for  his  injured  estate  in  reversion, 
Claiming  the   buildings  his  own,  their  destruction  a  waste  and  a 

trespass. 
Great  was  the  case  and  the  point  too  grave  for  Lincoln  assizes; 
After  a  verdict  for  Elwes,  the  case  was  reserved  for  the  full  court. 
There  where  the  king's  own  pleas  were  before  his  juscices  holden, 
Counsel  for  Elwes  and  Mawe  stood  forth  and  strove  with  examples. 
Showing  what  things  in  old  time  were  esteemed  ingrown  to  the 

freehold. 
Rooted  past  lawful  removal,  what  kept  their  movable  nature, 
Much  they  del)ated  of  wainscot  and  window,  of  furnace  and  oven, 
Vats  of  the  dyer  and  cider-mills  and  boilers  and  salt  pans; 
Also,  not  least,  a  new  thing,  lire-engine,  a  blessing  to  coal  mines. 
Twice  in  two  terms  tliey  strove  and  the  court  considered  its  J    Ig- 

nient. 
Judgment   which  afterwards,    well  advised,   the  chief  justice   de- 
livered. 
Stated   the   case   and    the    (luestion   and   spoke   their    considered 

opmion; 
Xo  right  had  the  defendant,  they  held,  to  remove  these  buildings, 
Wi>ely  he  showed  how  tlie  general  rule  bids  cleave  to  the  freehold 
Things  by  the  tenant  once  llxed,  and  explained  the  divers  exceptions 
Suffered  m  f.ivor  of  trade,  the  furnace,  the  vats,  and  the  boilers, 
Also  tlie  new  fire-engines,  the  cider- m' 'Is  and  tlie  salt-pans; 
Ever  in  favor  (.i  trade  such  cxcepticns,  no  mention  of  farming; 
Further  to  stretcli  the  exception  to  mere  agricultural  buildings, 
Not  for  a  certain  trade,  were  great  and  rash  innovation. 
Wherefore  IClwes,  the  shrewd,  maintained  his  cause  and  his  verdict, 
Had  great  worsliip  of  a!l  men  there,  and  wont  homeward  rejoicing, 
Bearing  tiie  postea,  goodly-engrossed,  the  prize  of  the  battle.' 


5s 


'  Leading  Uaces  Done  hito  Englisli.    IJy  an  Appreutico  of  Linoohi's  Iniu 
Loudon,  ISTiJ. 
.13 


s'! 


178 


LEADING    CA8i:S    SDIPLIFIED. 


cove:s-ants  that  '•  uvn  with  the  LAXU/' 


ifl 


€ 


•  '      f 


II 


SPEXCEirS    CASK. 

[5  Coke,  n;:    1  Smith's  Ld.  Ciis.  llC.] 

In  the  days  of  Queen  Eliz:il)cth  there  liv^cd  a  gentle- 
man named  Spencer,  who,  wise  in  his  generation, 
married  a  woman  with  mon<'y.  Tiius  erected  into  a 
huided  proi)rietor,  he  k't  a  house  and  grounds  lo  a 
nieniher  of  the  great  fan.ily  of  Smitli  for  a  term  of 
twenty-one  years,  and  in  the  indenture  Smitli  coven- 
anted to  l)i:ihl  a  l)riek  wall  on  the  huids  let  to  him. 
Before  very  long  ]Mr.  Smitli  got  tired  of  his  residence, 
and  assigned  the  demised  premises  to  a  JNIr.  Jones 
without  having  made  the  least  atteini)t  at  l)uildmg  the 
brick  wall.  But  Jones  could  not  live  there  either, 
and  he,  in  his  turn,  passed  on  the  [)lace  to  Clark, 
^leanwhile  nobody  had  built  tiie  wall,  and  S[)encer 
called  on  Clark  to  do  it.  "  I'll  see  you — ,"  replied 
Clark,  in  the  most  forc:!)le  Saxon  of  the  [)eriod  ;  "I've 
nothing  to  do  with  it;  I  n.ver  undertook  to  huild  any 
brick  walls."  "  "Well,  l)Ul,*"  said  S[)encer,  "Smith 
did;  and  you  stand  in  his  shoes.**  Argument,  how- 
ever, was  useless,  and  Si)encer  went  to  hiw. 

The  judges  had  (luite  "  a  day"  over  this  brick  wall. 
*'And,  after  many  arguments  at  the  bar,  tlui  case  was 
excellently  argued  and  debated  by  the  justices  at  the 
bench,  *  *  *  .md  many  diU'crences  were  taken 
and  agreed  concerning  express    covenants   and  cove- 


LANDLORD    AND   TENANT. 


179 


nauts  in  law,  and  which  of  them  wonlcl  rnn  with  the 
land,  and  which  of  them  are  collateral  and  do  not  2,0 
Avitli  the  land,  and  where  the  assiirneo  shall  bo  bound 
without  namini^  him,  and  where  not ;  and  where  he 
shall  not  be  bound,  although  he  be  expressly  named, 
and  where  not."  Tliev  decided  in  the  end  that  Clark 
was  7iot  bound  to  build  the  Avail,  ISniith  not  having 
covenanted  for  his  assigns,  hni  only  for  ht'nisf'Jf  as  to  a 
subject-matter  not  in  existence  at  the  time  of  the 
covenant,  and  they  laid  <lown  the  law  on  this  subject 
very  clearlv  to  this  effect :  — 

A  covenant  "  runs  with  the  land  "  when  either  the 
liability  to  perform  it,  or  the  right  to  take  advantage 
of  it,  passes  to  the  assignee  of  the  land.  Some  cove- 
nants run  with  the  land,  some  do  not,  thus:  — 

1.  Sii[)[)()se  the  lessee  wlio  mak(>s  the  covenant 
omits  all  mention  of  his  assigns,  and  the  deed  s[)eaks 
only  of  himsejl".      In  that  event  — 

a.  If  the  covenant  has  to  do  with  KonietJiliig  not  in 
existence  at  the  time  the  lease  is  made  the  assignee  is 
not  bound.  This  was  precisely  Spencer's  case;  tlie 
bi'ick  wall  was  '•  not  in  existence  at  the  time  tiie  lease 
was  made,"'  and  has  [)robably  not  been  built  yet. 

h.  But  if  the  cov(Miant  has  to  do  something  whicli  As* 
in  existence  at  the  time  the  lease  is  made,  and  is  ])(irt 
of  tlie  demised  lands,  then  the  assignee  is  bound.  If, 
f(>rexaini)U',  Sinitli  had  covenanted  to  rei)air  the  house 
during  the  term,  Clark  would  have  been  liable  to  [)vv- 
forni  that  covenant.  The  house  Avas  in  existence  at 
the  time  the  lease  Avas  made,  and  it  Avas  of  course  part 
of  the  demised  lands. 

2.  Now  sup[)ose  the  lessee  Avho  makes  the  covenant 
covenants  for  his  assigns  as  Avell  as  for  himself. 


'5 

3 


il 


it*-'!' 

':;}■'■  I' 


180 


LKAUIXG    CASKS    SIMPLIFIKI). 


P.5  >. 


C' 


«.  The  assigiioo  is  of  coui-se  liiihlc  in  case  b  of  1. 
A  niiltl  oxorciso  of  a  fortiori  reasoning  will  show  that 
this  is  so.  If  an  assignee  is  1)oimkI  when  he  is  not 
named,  mueh  more  is  he  bound  when  he  is  named. 

b.  But  the  assignee  is  also  bound  in  ease  a  of  1, 
jarovided  that  what  is  to  l)e  done  is  to  l)e  done  on  the 
demised  i)reinises.  Clark,  for  instance,  would  have 
had  to  build  the  wall  if  Smith  had  covenanted  for  his 
assigns. 

c.  The  assiirnee  is  not  liable  wdien  the  lessee's 
covenant  is  colhiteral  to  the  lands  dr.nised.  If  the 
lessee  covenanted  to  build  a  crematory  in  the  next 
county,  very  well,  let  him  do  it,  there  is  no  great  harm 
in  a  cremator^^  But  such  a  covenant  Avould  uot  bind 
his  assigns  even  if  the  lease  said  so,  for  it  would  have 
iiothiui]:  to  do  with  the  land  demised. 


WAIVER  OF  COXDITIOX  IX  LE  '  ■"  E 


DU3IPOU'S     CASE. 

[3  Coke,  11!);   1  Smith's  Ld.  Cas.  85.] 

In  the  tenth  year  of  the  reign  of  Queen  Elizul)eth 
the  college  of  Cor[)us  Christi,  Oxford,  made  a  lease 
for  years  of  certain  land  to  a  ]Mr.  Bolde,  exacting  from 
him  a  covenant  that  he  would  not  alien  the  property 


LANDLOUU    AND    TKXANT. 


181 


to  iinjbody  else  without  the  eolleue's  consent.  Three 
years  aftorwardsj  the  collei>e,  by  deed,  nave  him 
permission  to  alien  to  anybody  ho  pleased,  and 
soon  afterwards  liolde  availed  himself  of  this  permis- 
sion and  assigned  tin;  term  to  one  Tubb.  Tubb,  after 
a  brief  enjoyment  of  this  world's  goods,  made  his 
will  devising  the  lands  to  his  son,  and  went,  over  to  the 
majority.  The  son  entered,  and  also  died,  but  in- 
testate, and  administration  was  granted  to  a  person 
who  assigned  the  term  to  the  defendant  Symms. 
Thereupon  the  v  tath  ()f  the  i)resident  and  scholars  of 
the  college  of  Coipus  Christi,  in  the  University  of  Ox- 
foi'd,  was  kindled.  Bolde  had  covenanted  with  them 
not  to  assign  without  leave,  and  such  a  covenant,  they 
said,  should  have  been  observed  by  whoever  held  the 
lands.  Therefore,  they  entered  for  the  broken  condi- 
tion, and  leased  to  Dumpor  for  twenty-one  years. 
Dumpor  entered,  l>ut  Symms  re-entered,  and  for  doing 
so  Dumpor  now  brought  this  action  of  trespass  against 
him,  the  college  spectator  of  the  tempest  from  the  safe 
shore.  Duni[)()r  did  not  succeed  :  the  case  was  de- 
cided against  him  on  the  ground,  that  "  if  the  lessors 
dispense  with  one  alienation,  they  thereby  dispense 
with  all  alienations  after." 

"  '  Duuipor's  case  '  always  struck  me  as  extraordi- 
nary," said  Lord  Eldox  in  1807,  "  but,"  he  added 
rather  regretfully,  "  it  is  the  law  of  the  land."  ^  "  The 
profession  have  always  wondered  at  Dumpor's  case," 
said  Chief  Justice  Mvxstikld  in  1812,  "  but  it  has 
been  law  so  many  centuries  that  v,  o  cannot  now  re- 
verse it."  ■    Nevertheless,  it  remained  the  law  of  Eng- 


1 


m 


'  Brir.ir.iv.'ll  r.  Macphcrsou,  14  Ves.  173. 
•^  Doe  V.  Bliss,  4  Tiiuut.  7;3(). 


fmm 


^mm 


■I '5 


'"i 


182 


I-EAi)iN(f    CASKS    SI.All'LlI' IKD. 


land  until  18(10,  when  Piirliamcnt  knocked  it  on  the 
head  by  enacting  that  "  every  such  licuMiso  should, 
unless  otiierwiso  expressed,  extend  oidy  to  the  permis- 
sion actualh'  <>iven."  Duin[)or's  case  is  not,  however, 
to  be  neglected  l)y  the  American  student,  as  it  has 
been  recognized  and  followed  in  tliis  country  in  many 
subsequent  cases  early  and  late.^ 


GOODS    PRIVILEGED     FROM    DISTRESS 

RENT. 


FOR 


SIMPSOX  V.   HARTOPP. 

[Willes,  512;  1   Smith's  Ld.  Cas.  5l'7.] 

John  Armstrong  was  a  stocking-weaver,  and  rented 
a  small  cottage  of  the  defendant  IIartoi)p.  Early  in 
1741  ho  hired  a  stocking-frame  from  the  plaintilf  Simp- 
son, at  so  much  a  week,  for  the  purposes  of  his  trade. 
About  the  end  of  the  year,  as  tenants  will  do,  ho  got 
behindhand  with  liis  rent,  and  Flartopp,  as  landlords 
will  do,  distrained  on  him.  There  was  not  much  for 
the  bailiffs  when  they  came ;  indeed,  so  little  that 
there  was  not  enough  to  satisfy  the  rent  in  arrear 
without  carrying  off  Simpson's  stocking-frame.  This 
was  done,  although  "  the  said  John  Armstrong's  ap- 


1  Sue  Taylor's  L.  &  T.,  sect.  28(1;  notes  to  1  Smith's  Lcl.  Cas.  88. 


LANDLORD    AND    TKNANT. 


183 


pi'onti('(?  \v;i8  then  weaving  ii  stocking  i,.i  the  said 
fViune."  Wiien  he  heard  of  this,  the  anger  of  Simp- 
son was  kindled,  and  he  brought  an  action  of  trover 
for  the  stocking-frame,  and  succeeded  in  getting  it 
restored  to  him  ;  for  a  hindh)rd  has  no  1)usiness  to  dis- 
train on  what  is  actuaJhj  in  use  at  the  time. 

'^'he  general  rule  is,  that  ail  personal  chattels  found 
on  the  premises,  whether  the  goods  of  the  tenant  or 
somebody  else,  can  bo  distrained  for  rent.  Simpson  v. 
Hartopp  introduces  us  to  the  exceptions  :  — 

I.  Some  things  are  ahuolutely  privileged  from  dis- 
tress ;  under  no  circumstances  can  they  be  taken. 
Such  things  are  — 

1.  Things  in  the  personal  use  of  a  man  (because 
the  liiw  does  not  wish  to  encourage  breaches  of  the 
peace),  as  the  hatchet  with  which  a  man  is  working, 
the  clothes  he  is  wearinsr,  oi"  the  horse  he  is  ridinjr. 

2.  Fixtures  (because  damage  would  be  done  to  the 
freehold  in  tearing  them  away). 

3.  Thiniis  sent  to  the  tenant  to  be  wrought  on  in 
the  way  of  his  calling  ;  this  exemption  is  for  the  sake 
of  trade  ;  no  one  would  like  his  boots  to  be  at  the 
mercy  of  his  cobl)lor''s  landlord  whenever  they  required 
mending.  So  a  horse  sent  to  a  farrier's  shop  cannot 
be  distrained  for  the  rent  of  the  shop,  nor  yarn  sent  to 
a  Avoaver's,  nor  cloth  to  a  tailor's,^  nor  sacks  of  corn 
sent  to  a  mill  to  be  ground,  or  a  market  to  be  sold. 

4.  Goods  delivered  to  a  common  carrier  or  other 
person  to  be  conveyed  for  hire. 

5.  Perishable  goods  (l^ecause  such  articles  cannot 
be  restored  in  statu  quo  ante  distraint ;  they  soon  be- 


s 


'  Hoskius  V.  Paul,  4  Halst.  110. 


184 


LK.\I)IX(}    CASKS    SIMl'LIFIKI). 


I 


< 


come  corrupt  and  iiiu'iiliihlc)  ;  ami  tlu'rcfori!  if  I  ani 
behind  in  inv  rent,  niv  landlord  cannot  carry  oil'  mv 
bread,  and  I'ruil,  and  niilk.^ 

H.  Wild  animals  {fenv,  nattwoiy  as  the  law-books  call 
them)  ;  because  no  one  has  any  valuable  [)roperty  in 
them.  Dogs  were  once  considered  fcnc  naluv(i>,  —  one 
judire  went  so  far  as  to  call  them  vermin  —  but  thcv 
are  not  now,  and  when  an  animal,  ntiturally  wild,  has 
discarded  its  rouu'ii  manners  and  settled  down  1) 
play  the  humbler  rule  of  domestic  pet  —  a  tame  fox  oi- 
a  dancing  bear,  for  instance — it  may  be  distrained  as 
much  as  a  horse  or  a  donkey. 

7.  Goods  in  the  custody  of  the  law  ;  because;  already 
taken  in  execution,  and  because  a  court  will  not  brook 
interference  with  i)ro[)crty  in  its  custody. - 

8.  Everything  in  the  houses  of  ambassadors  or  other 
public  ministers  of  a  foreign  state  is  by  the  law  of 
nations  exempt,  being  considered  out  of  the  jurisdic- 
tion of  the  country.' 

II.  Certain  other  things  are  privileged  conditionally. 
They  can  be  taken,  but  only  when  there  arc  not  suffi- 
cient other  goods  on  the  premises  to  satisfy  the  land- 
lord's claim.     Such  things  are  — 

1.  The  instrumeuts  of  a  man's  trade  ;  ^^f/.,a  work- 
man's pickaxe,  a  doctor's  stethoscope,  a  lawyer's 
*' Leading  Cases,"  or  a  stocking-weaver's  frame.  It 
would  be  contrary  to  public  policy  to  take  the  means 
Avhereby  a  man  lives.  Of  course,  if  the  lawyer  were 
actually  reading  his  law-book,  or  the  doctor  using  his 
surgical  instrument,  such  things  would  be  ahsohttehj 


'  Given  r.  Blann,  3  Blackf.  <!+. 
'^  Noe  7'.  Gibson,  7  Paige,  513. 
3  Taylor's  L.  &  T.,  sect.  59G, 


LANDLOIM)  AND  TKNAXT. 


1S5 


privileged,  ns  beir."'  in  their  personul  use ;  so  that 
there  -svoiihl  l»e  no  lu  eesslty  to  make  them  out  to  be 
eoiulltlonally  privileged. 

2.   Beasts  of  the  plough,  and  sheep. ^ 

III.  By  a  variety  of  statutes  In  the  dltierent  States 
(which  the  student  must  consult  for  himself)  otluu- 
exemptions  from  distress  are  made  In  addition  to  those 
at  common  law.  Among  these  are  the  necessary  tools 
of  a  mechanic,  household  goods  to  a  certain  value,  and 
other  articles. 


1  Taylor's  L.  &  T.,  sect.  5!»7. 


■^ 

'::? 


*,( 


186 


LKADINO    CASKH    SIMPLIFIED. 


XII.  —  IXSCKAXCE. 


CONCE^ILMENT  OF  MATERIAL  FACTiS, 


CARTER  V.  IIOEHM. 

[;?  Burr.  lliOj;   1  Smitli's  Ld.  Ctis.  (118.] 

The  governor  of  Fort  Marlljorough,  in  the  Island  of 
SuniJitra,  in  the  East  Indies,  cunie  to  the  conehisiou 
that  there  was  considorahlo  danger  of  his  fort  being 
captured.  He  wisi-ly,  therefore,  wrote  to  his  brother 
in  Enirland,  and  asked  him  to  get  the  fort  insured  for 
ii  year.  The  l)rothor  Jiccordiiisxlv  wont  to  Boohni  & 
Co.,  and  that  eminent  fii'm  insured  Fort  Marll)orou<>h 
against  eapture  l)y  "  a  foreign  enemy  "  l)etsv'een  Octo- 
l)er  10th,  1759,  and  Oetober  lOth,  17(10.  In  April, 
17(50,  the  fort  was  captured  by  the  French,  and  this 
action  was  brouglit  to  recover  the  insurance  money. 
The  insurers  declined  to  i)ay,  on  tiie  ground  that  cer- 
tain material  facts  contained  in  two  letters  whicii  the 
governor  had  written  to  his  brother  in  Sei)tembcr, 
1759,  had  been  concealed  from  them.  In  those  letters 
the  governor  si)oke  of  the  weakness  of  his  fort,  and 
the  probability  of  the  French  attacking  it.  "The 
question,"  said  Lord  Ellenborougii,  in  delivering  the 


•^X 


INSUUANTK. 


187 


judu'iiu'iit  of  the  coui'l,  "  must  ill  ways  ho  wliothcr  tlicrc 
Wiis  uikUt  all  tlio  ciivimistaiK'cs,  jit  tlio  limo  liui  policy 
Wiis  undcrwi'itton,  a.  fair  rcpivsciitatioii  or  a  coiu't'al- 
iiu'iil,  fVaudulciit  If  (k'sigiuul,  or  tIioiii;Ii  not  dcslgiuMl, 
varvinu;  inatoriallv  tlio  object  of  tlio  poliov  and  cliaiiLi- 
iiig  the  risk  undortakon  to  1)0  run."  Thoroforc,  it 
appearing  that  tlio  fort  was  little  nioro  than  a  factory, 
h(!ing  merely  intended  for  derence  against  tlu;  natives, 
so  that  it.s  weakness  was  an  iimnaterial  fact  as  regarded 
tlu^  French,  while  the  prohiibilitv  of  their  attackiiiir  it 
was  a  question  which  a  person  in  J^ngland  was  in  a 
Ix'tter  i)osition  to  determine  than  tho  governor  him- 
self, Boehm  &  Co.  were  ordered  to  pay  up. 


.■:j 


I 


Flli/-:  INSUHAXCE  —  CUSTOM ARY  USE  OF  PRO- 
II IB  IT  ED  ARTICLES. 


HARPER  V.    CITY   IXS.    CO. 

[1  Bosw.  520;  L>2  N.  Y.  441;  Lawsoii,  Us.  &  C.  157.] 

Evervbodv  knows  the  ffrcat  nrintinir  and  publishinsT 
house  of  Harper  &  Brothers,  New  York.  Many  will 
also  remember  that  about  thirty  years  ixno  this  exten- 
sive  establishment  was  almost  entirely  destroA'ed  by 
fire.  Though  the  Harper's  Avere  well  insured  the  com- 
panies did  not  pay  up  without  some  law  suits.     There 


'*l 


ii 


188 


LEADI\(!    CASKS    SniI'LlFIK'). 


m 


Jlj 


m 


■'■\ 


was  one  j)()liey  for  $10,000  in  the  City  Iiisiir;iiico  Com- 
paiiv  of  New  York  wliicli  coverod  hooks  und  hook 
materials,  stereotyi)o  plates,  paper,  cte.,  contained  in 
the  premises  and  privileged  "  for  a  printini^  office  and 
hindcry."  Called  on,  after  the  fire,  to  settle,  the 
oflScers  of  the  company  drew  the  Messrs.  Harper's  at- 
tention to  one  of  those  numerous  conditions  which, 
printed  in  the  smallest  of  type  and  in  the  most  out  of 
the  way  place,  every  insurance  policy  contains.  This 
condition  was  in  these  words  :  "  The  company  shall  not 
he  liahlc  for  loss  or  damau'c  hy  fire  occasioned  hy  cain- 
pheno  av  other  imfiainnial)le  licjuid."  Now,  as  the  fire 
had  oriu'inated  through  the  carelessness  of  a  i)rinter  in 
dropping  a  lighted  paper  into  a  pan  of  fluid  cam[)heiie 
which  he  mistook  for  water,  it  looked  like  a  desper- 
ate case  for  the  firm.  But  they,  like  prudent  men, 
straightway  went  to  see  a  "  i^ood  lawyer."  Thev 
consulted  William  M.  Evai'ls,  and  he  advised  them  to 
hring  an  action  on  the  ijolicv,  which  thev  did.  On  the 
trial  a  numher  of  witnesses  testified  thatcain[)hene  was 
necessary  for  fine  printing,  for  the  pur[)()so  of  cle:inslng 
the  rollers  of  the  machines.  On  this  <>round  the  com- 
pany  were  ordered  to  pay  up,  the  princi[)Ie  hcing  that 
where  a  certain  trade  or  business  is  insured,  the  insurer 
is  presumed  to  consent  that  all  its  customary  incidents 
shall  he  allowed,  though  the  policy  (h)es  not  [)eiinit  it 
and  may  even,  hy  its  [)rinted  conditions,  forhid  it.  Wy 
insuring  the  plaintiff's  stock  with  the  privilege  of  a 
printing  office  and  l)()ok  binderv,  said  the  court,  the 
use  of  such  materials,  including  cainphene,  as  were 
necessary  in  that  business  was  allowed  ;  otherwise  the 
contra:jt  was  a  delusion  and  a  snare. 


INSUUANCK. 


189 


WHO    MAY  INSURE    THE  LIFE    OF   ANOTHER, 


CONNECTICUT,    ETC.,    INS.   CO.    v.    SCHAEFER. 

[ii4  U.  S.  457.] 


Goorije  and  Frances  had  been  inarriod  a  few  vears 
when  an  insnranee  airent  ajipeared  on  the  .scene,  and 
.soon  denion.strated  what  a  irood  thlnij  it  wonld  be  for 
them  to  take  out  a  policy  in  his  company  on  their 
joint  lives,  so  that  if  he  died  she  would  have  $5,000 
to  comfort  her  for  her  loss,  and  vice  versa.  But  after 
they  had  got  the  policy  the  course  of  true  love  ran 
anvthiuii"  l)ut  smooth.  The  end  of  it  was  that  in  two 
short  years  the  judge  was  called  on  to  cut  the 
hymeneal  knot — George  and  Frances  were  divorced. 
Then  Georire  married  a  Frances  II.  and  Frances  mar- 
ried  a  Georixe  II.  Bv-and-bv  Geor<>e  I.  died,  and 
Francis  I.,  when  she  heard  the  news,  uidocked  the 
bureau  drawer,  took  out  the  policy,  and  concluded  to 
open  a  bank  account  that  afternoon,  after  she  had 
called  at  the  insurance-office  for  her  money. 

The  insurance  manager  sat  in  his  counting-house 
counting  out  his  money.  He  chuckled  to  himself  as 
ho  read  over  tiio  long  list  of  innocents  who  had 
handed  over  their  money  for  his  company  to  keep. 
He  smiled  as  he  thought  how  the  bumj)  of  confidence 
had  been  developed  in  some  people,  when,  enter 
Frances.  The  manager  pleasantly  handed  her  a  chair, 
mistaking  her  for  an  a[)plicant  for  insurance ;  but 
when  she  produced  the  old  policy  on  tlie  life  of  her 


190 


LEADIXU    CASES    SIMPLIFIED. 


'Hi 


<■ 


rlllj 

i: 

! 


first  Georire,  liis  smile  (loi)iirtetl ;  and  his  look  chaiiiied 
to  one  of  hlauk  astonislnnent,  as  she  asked  liiin  if  ho 
would  be  irood  enoui^h  to  write  her  a  chock  for  the 
amount,  in  order  that  she  might  uet  it  in  the  bank  be- 
fore three  o'clock.  "Pay  you  to-day?  "  Ik^  uaspcd. 
"  You  must  bo  crazy,  mnihun  ;  I  never  hoard  of  such 
ji  thin"-.  You  quite  take  inv  breath  awav,  1  assure 
you."  "  "Well,  [  am  sorry  if  I  have  made  a  mistake, 
l>ut  does  not  the  policy  say  that  3'ou  will  i)ay  nio  the 
money  '  at  his  death?'  and  you  know  very  well  that 
he  has  l)eou  dead  nearly  a  week."  "  I  admit,"  an- 
swered the  manairer,  "  that  it  savs  '  at  his  death,'  but 
it  realh^  means  nothing  of  the  kind.  You  st^e,  l)ef()ro 
we  can  pay  3'ou  Ave  have  to  find  out  whether  the  man 
is  dead,  what  lie  died  of,  whether  the  answers  he  i>ave 
about  the  lives  of  his  grandfathers  and  grandmothers 
and  uncles  and  aunts  wore  all  correct.  Of  course,  we 
know  that  he  is  dead,  but  not  officially,  madam,  not 
ofiiciallv.  All  this  will  take  a  long  time,  for  I  have 
the  l)est  reason  for  believing  that  wo  can  establish,  by 
correspondence  with  parties  in  Germany,  that  his 
maternal  grandunchi  was  sixtv-nino  years  and  eleven 
months  old  when  ho  died,  while,  according  to  our  do- 
ceased  friend's  statement,  ho  should  have  \wi^\\  seventy. 
If  this  is  so,  it  was  a  misrei)rosentalion,  which,  of 
course,  releases  us  from  liability,  to  say  nothini;  of  a 
report  which  one  of  onr  agents  ])rings  that  an  old 
acquaintance  remembers  his  falling  from  a  tree  when 
l)ird's-nesting  while  a  l)oy  —  another  im[)ortant  fact 
which  he  concealed  from  us.  Come  back  in  a  couple 
of  3'ears,  nuulam,  and  wo  will  then  be  in  a  [jositiou  to 
say  whether  we  will  pay  you  or  not."  "  Swindler," 
cried  Frances,  "  I'll  send  my  husband  to  talk  to  you." 


1^•SUKANCE. 


191 


"Culm  yourself,  madjiin,"  returned  the  manager; 
"you  can  not  mean  that  you  have  secured  another 
husband  in  a  week."  Then  Frances  tokl  the  iiiana<rer 
how  she  and  George  had  been  divorced  more  than  a 
ye:U'  heibre,  and  that  she  had  married  again.  As  he 
listened  to  this,  his  smile  returned,  and,  raising  his 
eyes,  he  said  sh)wly :"  Before  you  go  madam,  I 
should  like  to  ask  you  if  you  have  ever  heard  of  Bold- 
ero?"  "  Boldero,"  exclaimed  Frances;  "who  was 
he,  a  Chinaman?  "  "  No,"  returned  tiie  manager,  "  an 
Englishman.  Listen  to  his  story  and  then  say  if  you 
think  it  worth  while  coming  here  again  even  in  two 
years : 

"  About  seventy-Hvc  years  ago  there  lived  a  great 
statesman  named  William  Pitt,  who  was  Prime  Minis- 
ter of  England,  and  whose  income  was  never  quite  up  to 
his  expenses.  Among  his  many  creditors  was  one 
Boldero,  a  carriage-maker,  who  had  a  bill  against  him 
for  something  like  £2,500.  Seeing  small  cliance  of 
his  ever  <>:ettinij!;  his  money  from  either  Pitt  livin<r,  or 
his  estate  when  he  died,  Boldero  went  to  the  Pelican 
Insurance  C'ompany  in  London,  and  took  out  a  policy 
on  the  premier's  life  for  the  £2,500.  By-and-by  Mr. 
Pitt  died,  and  a  gi'ateful  country,  alter  depositing  his 
remains  in  Westminster  Abbey,  ordered  all  his  debts 
to  be  paid  from  the  })ul)lic  i)urse.  Ui),  then,  comes 
Mr.  lioldero,  and  gets  his  £2,500  from  the  government 
fund.  Then  he  [)resents  his  policy  at  the  Pelican 
office,  and  the  directors  refusing  to  i)a3'  him,  he  brings 
a  suit  in  the  Court  of  King's  Bench.  But  there  he  is 
worsted,  for  Lord  ELLKxnouorcai,  Ciiief  Justice  of 
England,  decided  that  a  contract  of  life  uisurance  is  a 
contract  of  indenuiity,  and  that,  as  Boldero  had  been 


:3 


111 


u 


liJ2 


LEADING    CASES    SIMPLIFIED. 


■"iip 


paid  his  debt,  he  could  not  recover  anything  from  the 
company.' 

"  So,  madam,  you  must  phiinly  see  that  by  being 
divorced  and  marrvinu:  airain,  your  interest  in  the  life 
of  your  first  husband  ceased,  and,  like  Boldero,  you 
can't  get  any  nisurance  money.  Good  day."  Frances 
left  the  office,  and  Avent  straiirht  to  a  lawvcr.  To 
him  she  related  the  whole  case,  l)e<2;innin<x  with  the 
visit  of  the  agent  five  3'ears  before,  and  ending  with 
her  interview  with  the  manager.  "  lie  asked  me," 
said  s-he,  '*  if  I  had  ever  heard  of  Boldero."  "  Did 
he,  indeed,"  said  the  man  of  law,  "  then  go  back  and 
ask  Jiim  if  he  ever  heard  of  Dalb}'."  - 

The  last  scene  is  laid  within  the  august  portals  of 
the  Supreme  Court  of  the  United  States,  where  the 
man  of  law  has  safely  piloted  Frances'  action  against 
the  company.  The  court  is  delivering  its  judgment. 
There  is  no  use,  they  say,  quoting  Boldero's  case  to  us, 
for  as  even  the  great  Homer  sometimes  nods,  the  great 
ELLEMJOiJOUCJir  sometimes  made  a  mistake,  and  when 
he  decided  that  Boldero  could  not  recover  the  £2,r>00 
from  the  comp;inv  he  made  a  verv  bio-  one,  indeed. 
The  English  judges  never  liked  that  decision  ;  so 
when,  fifty  years  after,  one  Mr.  Dalby  sued  on  a 
policy  on  the  life  of  the  Duke  of  Cambridge,'^  the 
Court  of  Exchequer  Chamber  unanimously  overruled 
Boldero's  ca^e.  A  man  cannot  take  out  an  insurance 
on  the  life  of  a  total  stranger,  for  the  insurance  is  only 
valid  when  he  has  some  interest  in  the  life  of  the 
party  whom  he  insures.     Any  reas   ..able  ex[)ectati()n 


1  Godsiill  r.  BoUloro,  0  East,  72;  L'  Smith's  Ld.  Cas.  'J!>2. 
■'■  Dalby  v.  India,  etc.,  Life  Ass.  Co.  15  C.  U.  ;J(;5;    2  Smith's  Ld. 
Cas.  298. 


INSUItANCF. 


193 


of  pecuniary  benefit  or  adviintagc  from  the  continued 
life  of  another  creates  a  sufficient  insnra))le  interest  in 
such  life.  Thus,  a  man  has  an  insurable  interest  in 
his  own  life,  ami  in  that  of  his  wife  and  children,  a 
woman  in  that  of  her  husband,  a  child  in  the  life  of  his 
parent,  or  a  creditor  in  the  life  of  his  del)tor.  A  con- 
tract of  life  insurance  is  not  like  that  of  fire  insurance, 
or  marine  insurance,  a  contract  of  indomnlt}'^  merely, 
(this  is  where  Ellknbououoh  blundered),  but  it  en- 
litU's  th'^  -"surcd  to  recover  the  whole  amount  Avithout 
reference  to  what  his  real  loss  is.  All  that  is  necessary- 
is  that  he  should  have  had  an  insurable  interest  at  the 
time  the  poJici/  was  taken  out.  The  cessation  of  this 
interest  does  not  atfect  the  case  at  all.  Frances 
clearly  had  an  insurable  interest  at  the  time  the  policy 
was  taken  out — for  George  and  she  were  then  man 
and  wife  —  and  the  subsequent  divorce  and  re-marriage 
did  not  alter  the  case. 

So  she  got  her  money  after  waiting  five  years. 
But  then  beneficiaries  under  life  insurance  policies 
have  generally  to  wait  longer  than  that,  and  usually 
consider  themselves  very  lucky  if  they  ever  get  auy- 
thinir  at  all. 

13 


'is 

••:3 


19^ 


LEADING    CASES    SIMPLIFI  Kl). 


V' 


mi 


^ri 


I!  I 


:i  ^ 


XIII. BxULMEXTS. 


THE  DIFFERENT  KiyDS  OF  BAILMENTS. 


COGGS   V.   BERXARD. 

[Ld.  Raym.  !)0i>;   1  Smith's  Lil.  Cas.  284.] 

Coirffs  wanted  several  hoijslieads  of  brandy  removed 
from  one  cellar  to  another.  Instead  of  emplo3'ing  a 
regular  porter  to  do  the  job,  he  accepted  the  gratui- 
tous services  of  his  friend,  Bernard,  who  said  he  would 
move  them  safely  and  securely.  But  the  amateur  did 
his  work  so  clumsily  that  one  of  the  casks  was  staved, 
and  the  street  streamed  with  u'ood  old  brandv.  Coirus 
was  anirrv,  t.nd  notwithstandinijj  Bernard  was  to  re- 
ceive  nothing  for  his  trouble,  successfully  mantained 
an  action  against  him  for  tlie  spilt  liquor. 

This  is  one  of  the  most  celebrated  cases  ever  decided 
by  a  court,  for  the  elaborate  judgment  of  Chief  Justice 
Holt  contains  the  first  exhaustive  and  methodical  ex- 
position of  the  law  of  bailments.  A  bailment  is  the 
delivery  of  a  thing  in  trust  for  some  special  purpose, 
the  person  who  delivers  it  being  called  the  bailor,  and 
the  person  to  Avhom  it  is  delivered  the  bailee.  Lord 
Holt  divides  bailments  into    six  kinds  —  depositu7)i, 


IJIII 


liAlLMENTS. 


19^ 


mandatum,  commodafum,  vadium,  locatio  rei,  unci 
locatlo  operis  faciendi.  These  may  also  lie  clussifiell  :• 
(1)  For  the  benefit  of  the  baUor  iiloiie ;  (2)  fur  the 
])eiu'fit  of  the  bailee  alone  ;  (3)  for  the  mutual  benefit 
of  the  bailor  and  bailee. 

1.  Under  the  first  head  come  depositum  and  man- 
dalum. 

(a.)  Depositum  —  the  delivery  of  goods  to  be  taken 
care  q/'for  the  bailor  without  the  bailee  receiving  any- 
thing for  his  trouble:  e.fj.,  I  a.sk  my  friend  Brown  to 
hold  iny  watch  while  I  am  playing  a  game  of  base-ball. 
Brown  is  responsible  only  for  gross  negligence.  If  he 
takes  a  moderate  amount  of  care  of  my  -watch,  he  will 
not  be  oblio-ed  to  give  me  a  new  one  if  it  is  stolen,  or 
lost,  or  broken.  But,  on  the  other  hand,  if  he  has 
been  jxrosslv  ne<ilii;ent,  he  cannot  defend  himself  bv 
showing  that  he  has  lost  his  own  things  with  my 
watch.  At  the  same  time  I  must  exercise  a  certain 
amount  of  care  in  the  selection  of  my  depositary.  If 
I  were  to  intrust  inv  watch  to  an  idiot  or  a  little  ffirl, 
no  amonnt  of  gross  negligence  on  their  part  would 
give  mo  a  remedy  against  them.  I  must  bear  the  con- 
sequences of  my  own  stupidity.  The  depositary,  as  a 
rule,  must  not  make  use  of  the  things  deposited.  But 
if  no  harm  would  naturally  come  from  his  doing  so, 
he  may.  Brown,  for  example,  might  draw  my  watch 
from  his  pocket  to  see  the  time. 

(6.)  Mandatum  —  the  delivery  of  goods  to  he  done 
somethuiij  with  for  the  bailor,  without  the  bailee  re- 
ceiving anything  for  his  trouble  :  {^f/.,  I  ask  my  friend 
Jones  to  post  a  letter  for  me. 

As  in  depositum  (and  maiidatiDa  is  only  a  kind  of 
superior  depositum),  the  bailee  is  liable  for  gross  neg- 


^§: 


19(j 


LKADING    CASKS    SIMl'I, IKIED. 


^  . 

\  1 


liirencc  only.  The  contract  between  Mr.  Coijirs  nii<l 
Mr.  BeniiU'd  was  one  of  manddtiim,  thongh  it  is  lo  he 
observed  that  ]Mr.  Bernard  hiid  additional  rcsponsibil- 
itv  on  his  shoulders  by  iindcrtaUinij  to  effect  the  re- 
nioval  "  safely."  The  rule,  however,  that  a  mandatory 
is  responsible  for  gross  negligence  only,  is  to  some  ex- 
tent qualitied  by  the  maxim  sjxjiidcs  perUkon  arti^, 
that  is  to  say,  if  your  position  implies  sUill  you  must 
use  it.  If  I  ask  a  jockey  to  do  mo  the  favor  to  trv  my 
horse,  or  a  surgeon  offers,  without  pay,  to  set  my 
sprained  ankle,  they  must  use  the  ordinary  care  of 
persons  of  their  qualifications.  What  would  not  Ito 
iiciiliirence  at  all   in  unskilled   i)ersous  niiii:ht  be  ijross 

V?    c  loo 

ncirliixence  in  them. 

2.  Under  this  head  (for  the  benefit  of  the  bailee 
alone)  comes  commodatain. 

(a.)  Coi/iinodaiuin  —  the  lendiw/ of  a  thing  to  be 
returned  just  as  it  is:  e.g.,  I  lend  my  gray  mare  to 
Jones  to  ride  to  the  next  town  on  ;  I  don't  exi)ect  him 
to  return  me  another  jrray  mare,  but  the  samo  identi- 
cal  old  horse  that  I  lend  him.  (Note.  —  If  I  exi)ected 
a  borrower  to  return  me  not  the  identical  things,  but 
similar:  e.g.,  if  I  lend  him  half  a  dozen  postage 
stamps,  or  $'),  it  would  not  be  cominodatum  but 
onufiuim. ) 

Commodatiua  being  a  contract  in  which  the  only 
person  benefited  is  the  bailee,  that  gentleman  is  re- 
sponsible even  for  slight  negligence  ;  the  more  so  as 
by  the  fact  of  borrowing  he  may  l)e  taken  to  have 
represented  himself  to  the  lender  as  a  fit  and  proper 
person  to  be  intrusted  with  a  valuable  article.  The 
commodatory  must  strictly  pursue  the  terms  of  the 
loan.     If  1  borrow  a  horse  or  a  book  to  ride  or  to  read 


IIAILMKNTS. 


11)7 


myself,  I  huvc  no  business  to  allow  aiiyhody  else  to 
ride  or  rojid.  If  the  horse  is  lent  for  the  hiiih\v;i\',  I 
must  not  t:iko  it  alouij  d;uigerous  bridle  ]);itlis.  The 
]):ulee  must  redeliver  tlie  ehiittel,  Avhen  the  time  has 
expired,  just  us  it  was,  reasonable  wear  aud  tear  ex- 
ee[)ted.  IIo  is  not  responsible,  however,  if  the  arti- 
cle i)erishes  by  iuevitable  accident,  or  by  its  heing 
stolen  from  him  without  any  fault  of  his.  The  bailor 
must  disclose  defects  of  which  he  is  aware,  as  for 
instance,  that  the  gun  lui  len<ls  his  frieud  Brown  is 
more  likely  tlian  not  to  l)urst  and  blow  his  hand 
off. 

3.  Undtu'  the  last  head  (for  the  mutual  benefit  of 
bailor  aud  bailee)  conn;  vadiiun,  locatio  rei  iind  locaiio 
ojx-ris. 

{(I.)  Vadium  (otherwise  known  i\>i  ])ir/non  accep- 
tuiii)  — the  contract  of  pawn.  We  will  hope  the  stu- 
dent is  not  fi'e(juently  the  ])ailor  here. 

The  benefit  being  mutual,  the  degree  of  diligence  re- 
quire<|  of  the  bailee  is  "  ordiuarv."  If  in  spile  of  due 
diligence  the  chattel  is  lost  while  in  the  pawnee's 
keei)iug,  he  may  still  sue  the  pawnor  for  the  amount 
of  his  debt.  The  elfect  of  the  coutract  of  pawn  is  not 
(like  that  of  a  mortgage  of  i)ersonalty)  to  pass  the 
})roperty  in  the  chattel  to  the  bailee ;  nor,  on  the 
other  hand,  is  .it  (like  that  of  a  lieu)  merely  to  give 
liiui  a  hostage,  but  it  gives  him  such  a  special  prop- 
erty in  tl.'e  thing  pawned  as  enables  him,  if  the  pawnor 
makes  default,  to  sell  it  and  pay  himself;  the  sur[)lus 
being,  of  course,  handed  back  to  the  pawnor.  As  a 
rule,  the  pawnee  may  not  make  use  of  the  thing 
bailed  to  him.  If,  however,  it  is  au  article  which 
cannot    bo  the    worse   for  the   user,  — jewellery,    for 


:3 


10« 


LEADINti    CASKS    SIMI  ..II  IKI). 


ill 


instiinee,  —  ho  nuiy  ;  but  in  such  !i  cjiso  ho  wouhl  l)o 
rcsj)()ii.sil)lo  for  tho  h)s.s,  however  it  h;i[)i)(!ii('(l.  Alorc- 
over,  if  the  piiwii  bo  of  such  a  nature  that  the  pawnee 
is  put  to  expense  to  keep  it,  e.g.,  if  it  1)0  a  horse  or  ii 
cow,  the  pawnee  may  make  use  of  it, — riding'  th(^ 
liorse  or  milking  the  cow  —  as  a  reeompcuise  for  the 
cost  of  maintenance. 

(/>.)  Lorxttlo  rel  —  the  every-day  contract  ol'  the 
hiring  of  ii^oocls. 

This  being  a  mutual  benefit  l)ailincnt,  the  decree  of 
noijliijence  for  which  the  hirer  is  an-^werabie  is  ordiii- 
ury.  I  hire  a  horse  and  buggy  from  a  liv(My-keo[)er, 
and  durin<;  the  course  of  niv  drive,  the  buiriry  is 
run  into  and  smashed,  or  the  horse  runs  away  and 
tears  everything  to  pieces.  Tho  law  does  not  make 
me  pa}--  tho  livery-man  for  the  damage,  if  I  have  us(>d 
ordinary  care  in  driving,  that  is,  if  I  have  driven  his 
horse  as  I  would  my  own. 

(c.)  Locatlo  oppvis  faciendl  —  when  the  bailee  is  to 
bestow  labor  on  or  about  the  thing  l)ailod,  and  to  be 
paid  for  such  labor. 

Generally  speaking,  the  rule  a;^  to  care  in  this  case 
is  tho  same  as  in  vadium  or  locatio  rei.  I  give  my  coat 
to  a  tailor  to  be  mendeil  or  my  watch  to  a  jewclU'r  fir 
the  same  pur[)ose.  They  must  use  ordinary  care  in 
doing  it,  and  of  course  if  their  occupation  implies  skill 
they  must  use  it,  as  in  case  1  {It.)  But  wIkmi  a  bailee 
of  this  kind  is  a  person  exercising  a  public  emjiloy- 
ment — a  common-carrier  or  an  inn-keo[)or,  he  is  re- 
quired to  exercise  much  greater  circums[)ection.  l\\ 
fact,  the  law  makes  him  an  insurer  of  my  goods,  ex- 
cept where  the  loss  arisqs  from  the  act  of  God  or  the 
public  enemy. 


HAILMKNT.'"!. 


199 


LIABILITIES  OF  IXS^  KEEPERS. 


CAYT.E'S   CASE. 

[8Coke,  :{2;   1  Smith's  Lil.  (las.  Ilt4.] 

Alatodti'iivollorji-uiiiod  his  timelv  iim.aiid  disinoiiiit- 
m<r  from  hi.s  fiorv  steed  btido  mine  host  send  it  out  to 
pasture.  The  hiiidU)rd,  JU'cordiiigly,  sent  it  into  a 
Held  ;  but,  when  its  master  wished  to  resume  his  Jour- 
ney, it  was  nowhere  to  be  found.  Tlie  owner  now 
tried  to  make  out  that  the  hindh)rd  was  resp()nsil)le. 
But  it  was  held  that  he  was  not,  for  the  iiorse  had  been 
sent  into  the  field  at  the  express  desire  of  tlie  guest  ; 
and  several  other  rules  as  to  the  liability  of  inn-ke(.'pers 
this  great  case  established  in  the  law,  viz.  : 

1.  If  a  neighbor,  who  is  no  traveller,  but  siin[)ly  a 
friend  who  is  lodging  thereat  his  request,  has  his  goods 
stolen  from  the  inn,  the  inn-keeper  is  not  lial)le. 

2.  An  inn-keeper  is  bound  to  answer  for  himself  and 
his  family,  for  his  chaml)ers  and  stables. 

3.  It  is  no  excuse  that  ho  delivered  the  guest  the 
key  of  the  chaml)er  in  which  lie  is  lodged,  and  that  he 
left  that  chamber  door  oi)cn. 

4.  Alth()Uiji:h  the  <>'uest  does  not  deliver  his  floods  to 
the  inn-keeper  to  keep,  nor  acquaint  him  with  them, 
yet,  if  they  be  carried  away  or  stolen,  the  inn-keeper 
is  liable. 

5.  The  inn-keeper  requires  his  guest  to  put  his  goods 
in  a  certain  place  under  lock  and  key,  and  then  he  will 
warrant  them,  otherwise  not;  the  guest  lets  them  lie 


!§ 


200 


LE.M)IN(}    CASKS    SIMI'LiriKI). 


r.  i 


i44 


in  ill!  outer  pluco  where   thev  aw  taken   :i\vav.     Tlu- 

I.  «  » 

inn-Uecper  slnill  not  be  diarized. 

6.  The  inn-keeper's  liuhilily  extend-  to  all  niov  iMc 
Sfoods. 

7.  If  the  ijiiest's  servant,  or  he  wlio  conies  wilh  him, 
or  he  whom  he  desires  to  he  lodiicd  wilh  him,  stc^iis 
or  carries  away  his  i;-oods,  the  inn-keei)er  shall  not  he 
charu'cd. 

S.  II"  the  tziic>t  l>c  hcalcn  at  the  inn,  the  inn-kecpcr 
shall  not  answer  I'or  it. 


BEIIKSIIIIIE  AVOOLLEX  CO.  v.    PROCTOR. 


[TCiisii.  n:.] 


Russell,  the  airent  oi  the  Berkshire  Woollen  C!om- 
pany»  "vvent  to  Boston  to  attend  to  a  law-><nit  for  his 
})rlnci[)als.  IIo  ifiii,  up  at  the  ^Nlarlhoro  hotel  in  that 
city,  alon<>;  with  several  witnesses  that  he  had  hrouijht 
alonir  with  him.  L;iw-snits,  as  some  people  know,  cost 
money,  and  Russell,  therefoi'o,  h(>sides  spare  chanjjfe, 
had  a  package  containing  $'»()()  in  his  trunk.  He  hud 
been  at  the  hotel  about  three  weeks,  when  ho  discov- 
ered that  a  thief  had  come  into  his  room,  picked  the 
lock  of  his  trunk  and  de[)arted  with  the  shekels.  The 
Woollen  Conii)any  did  not  like  to  h)se  good  money  in 
this  way,  and  they  immediately  instituted  a  suit  against 
the  landlord  for  the  amount.  jNIine  host  made  several 
defences.     Among  other  thinjjs  he  said  that  as  Russell 


H.ML.MKXTM. 


201 


w.'is  goiiiir  to  1)(>  ill  Boston  Mcvin'iil  wocks,  lio  li.-id  miido 
ji  ^pt'cinl  iiiirccMU'iit  with  iiim  to  hoard  liiiii  tit  so  miicli 
a  week.  "  This  in;i(lu  him  u  l)o;u'(h'i',"  he,  iiri^iiod, 
"  iiiid  MM  iiui-koopcr  is  only  an  insurer  of  th«  property 
of  '  U'Ui'sts.'  "  l»nl  llie  coui't  hchl  tliiit  a  Iravclh'r  wlio 
puts  up  at  an  inn,  and  is  received  as  a  u'uesl,  docs  not 
cease  to  he  a  iriiesl  from  llie  fact  that  lu!  makes  ail 
aiirccment  with  tlie  inn-kee[)er  for  tlu;  i)i'icn  of  liis 
hoard  hy  the  week.  P>eaten  from  this  [josition,  h(!  saitl 
tliat  he  was  quite;  willing  to  stand  liahlo  for  the  [)rop- 
ertv  of  his  iruests,  hut  that  ho  thought  ho  ouirht  not  to 
pav  for  what  tliev  earri*^d  with  them  l)elonnMni»*  to 
othei-  [)eo[)Ie.  l>ut  the  court  told  him  that  it  was  an 
old  principle  of  law,  tli.it  if  a  servant  is  rohhcd  of 
his  master's  money  or  i»oods,  the  latt(!r  may  maintain 
an  action  against  the  inn-kcopcr  in  Avhoso  house  tho 
loss  was  sustained.  These  were  two  knock-downs  for 
tho  i)laintifr,  l)ut  the  diifeiKhint  camo  up  smiling  for  a 
third  and  final  round,  "At  any  ra<'3,"'  ho  said,  "I 
am  only  liahlo  for  such  sums  of  money  as  my  guests 
ai'o  ohli<2:ed  to  carry  for  tlieir  necessary  trayeHin<>;  ex- 
])onscs."  "  Xo,"  answered  tho  court,  "you  are 
wrong  again.  The  res[)onsil)ility  of  the  inn-kecpor 
extends  to  all  tho  moval)le  goods  and  chattels  and 
moneys  of  his  guest  which  are  phu'cd  within  tho  inn." 
Tho  landlord  could  fight  no  longer  ;  he  threw  up  the 
sponge  and  paid  the  judgment. 


:^. 


^sS^^'iSS:»t%;*t^aKj.:.*Mr.Kii^1  ■^'^'■^^^i^ 


■t:<-' 


202 


LEADING    CASES    SIMPLIFIED. 


RESPOXSIBILITY  <>F  CAR  HIE  R  OF  PASSEXGEli^ 
FOR  DEFECTIVE  VEHICLE. 


IXGAT^LS  V.    l?rLLS. 

[D  .M,etc.  1 ;  Thonip.  Ld.  Ctis.  Carr.  Pass.  111'.] 

Ml*.  Iiiir;ill.s  was  iuiotheruiilortuuato  tniveller.  hid- 
ing on  tho  top  of  a  coach  which  carried  pas^enjj^ers 
between  Camhridge  and  Boston,  he  was  .surprised  to 
liear  the  axlo  crack,  to  see  one  of  tho  hind  wheels  come 
off  and  to  feel  tho  vehicle  settle  down  on  one  side. 
Without  waiting  for  anvthing  more,  he  made  a  jump 
to  tho  pavement,  but  not  being  able  to  laud  with  the 
ability  of  a  trapeze  performer,  ho  broke  his  arm.  A 
broken  arm  is  no  loko  and  Mr.  In<ralls  determined  to 
make  the  coach  proprietor  pay  tho  damage.  Tho  lat- 
ter was  just  as  determined  not  to  pay.  In  tho  first 
place  ho  pleaded  that  if  Mr.  Ingalls  had  kept  his  seat, 
as  ho  ought  to  have  done,  he  would  not  have  been 
hurt  at  all,  for  it  was  his  ]ea[)  to  tho  [)avement  which 
had  broken  his  arm  and  not  the  o.  erturning  of  ihc 
coach.  But  the  court  held  that  wlu're  a  passenger  is 
phiced,  in  consequence  of  tho  carrier's  want  of  care,  in 
!l  situation  so  perilous  as  to  render  his  endeavoring  to 
escape  an  act  of  precaution,  the  carrier  is  liable  fi)r  the 
injury  he  receives  in  doing  so,  even  though  it  after- 
wards turns  out  that  if  he  had  kept  his  seat  he  would 
not  have  been  hurt  at  all.  Then  tho  coach  projirietor 
resorted  to  another  defence,  and  this  time  with  success. 
He  i)roved  that   he  had   his  coach  m;'  U;  of  tho  best 


m: 


BAILMENTS. 


203 


matoriiils  in  the  market,  that  it  had  l)eeii  carefully  ex- 
iiiuiiicd  and  inspected,  but  that  the  axle  had  broken 
on  account  of  a  hidden  defect  in  its  interior  which  no- 
body could  have  discovered  or  have  been  aware  of. 
The  coiu't  held  that  this  was  enouixh  and  that  ho  was 
not  liable.  Carriers  of  passengers,  that  said,  wore 
bound  to  the  utmost  care  and  diligence,  in  the  trans- 
portation itself  and  in  i)roviding  safe  and  sufficient  vehi- 
cles. But  "  where  the  accident  arises  from  a  hidden  and 
internal  defect  which  a  careful  and  thorough  examina- 
(ion  Avouhl  not  disclose,  and  which  could  not  be 
;:uarded  aixainst  bv  the  exercise  of  a  sound  iudirnient, 
ih(Mi  the  carrier  is  not  liable  for  the  injury,  but  the 
misfortune  must  be  l)orne  l)v  tlie  sufferer  as  one  of 
that  class  of  injuries  for  which  the  law  can  afford  no 
redress  in  the  form  of  a  i)ecuniar3'"  recompense."  ^ 


1  It  must  strike  the  observer  as  somewhat  strange  that  the  law 
regards  the  safety  of  a  chattel  while  in  trausit  as  of  more  iiiiportauce 
than  the  life  or  pt-rsoii  of  a  luunau  being.  A  carrier  of  goods  is 
(with  two  rare  ex(';'plions)  an  insurer  of  tlieir  safety.  If  there  had 
been  a  basket  of  eggs  on  the  top  of  the  coach  on  wliich  Mr.  lugalls 
was  riding,  and  tiie  broken  axle  had  spilled  tlieni  into  the  street,  the 
coach  proprietor  would  have  had  to  pay  for  them.  However,  the 
destinclion  itself  is  not  uioro  absurd  tliau  the  reasons  which  the 
courts  cnutinuf!  to  give  for  maintaining  it.  Wiien  property  is  in- 
trusli'd  to  a  carrier,  say  tlie  courts,  the  owner  loses  all  sight  of  it; 
it  is  inanimate  and  cannot  take  care  of  itself.  What  is  there  to  pre- 
vent the  carrier  and  some  Jesse  James  of  the  road  secretly  making  a 
divide  of  tlie  property?  To  protect  persons  liavingdealings  with  car- 
riers, we  must  make  them  insurers.  "  liut  prrsDiis,^''  say  the  courts, 
"are  very  different  —  they  can  take  care  of  themselves,  and  can 
exercise  that  vigilance  and  foresight  in  the  maintenance  of  their 
rights  which  the  owners  of  goods  cannot  do."  Tliis  had  u  little 
show  of  sense  when  people  rode  in  stage  coaches,  but  we  should 
very  much  like  to  see  some  one  of  our  modern  jmlges,  who  are  so 
fond  of  applying  this  reason  to  the  means  of  transit  of  to-day. 


j:,^,i 


204 


LEADING    CASES    SIMPLIFIED. 


RAILROAD    TIME    TABLES    AXD    COXTRACTS. 


DENTOX   V.  GREAT  XORTHERX   ItAIEAVAY  CO. 


[5  El.  .<:  151.  SCO;  Thump.  Ld.  Cas.  Carr.  Pass.  52.J 


On  the    2")tli  of  Miirch,  18")."),   ]\Ir.   Doiiton,  an 


en- 


if 


■}(:,',  'L 


""'•SI 


ffiiicer  of  sonic  cmiiienee,  had  occasion  to  ijo  from 
Pctci'borongh  to  Hull,  where  he  had  an  ap[)ointinont 
for  the  next  nioriiinir.  He  consnlted  the  C()ni[)any's 
time-tables,  and  fonnd  there  was  a  train  leavini^'  Pcter- 
l)oron<rh  at  7  p.  :m.  which  wonkl  land  hiin  at  Hull 
ubont  midnight.  This  jnst  snitcd  him,  so  he  took  his 
ticket  for  Hull  and  started  by  it.  But  when  he  got  to 
a  place  called  Milford  Junction,  where  passengers 
change  cars  for  Hull,  ho  was  informed  bv  an  obliu-inii: 
official  that  tlu;  late  train  to  Hull  had  been  discon- 
tinued, and  that  lu;  could  not  get  there  that  night. 
The  fact  was,  that  the  line  from  Milford  Junction  to 
Hull  belonged  to  the  North-Eastern  Railway  (\)ni- 
pany,  wiio  till  March  1st  had  run  a  train  dc[)artiiii;  a 
few  minutes  after  the  arrival  of  the  train  having 
Peterborouu'h  at  7  p.  m.  But  it  had  not  run  at  all 
during  March,  and  the  Great  Northern  Kailway  Com- 
pany  had  pnblishcil  their  March  tinnstables,  thougli 
they  had  had  notice  that  it  would  not  run.  In  conse- 
quence of  the  absence    of  this  train,  Mr.  Denton  did 


"  takliiu;  care  of  liiuisclf  "  ami  "  cxcrcisinir  vi-rilancc  and  f<)resiu:lit 
in  the  niaiiitcnance  of  his  riLrlits  "  in  tlie  midst  of  a  railroail  eolli- 
siou  or  a  steamboat  explosion. 


ijail.mi:nts. 


205 


not  get  to  Hull  ill  time  to  keep  liis  appointment,  imd 
sustained  damage  to  the  amount  of£')  lO.s.,  for  which 
lie  sought  to  make  the  Great  Northern  Railway  Com- 
pany^ liable.  He  was  quite  successful.  The  company 
were  held  liable  on  the  grounds  :  — 

1.  That  they  had  l)cen  guilty  of  a  faise  representation. 
"  It  is  all  one,"  said  Lord  Camimjell,  "■  as  if  a  person 
duly  authorized  by  the  company  had,  knowing  it  was 
not  true,  said  to  the  plaintiff,  '  There  is  a  train  from 
Miltord  Junction  to  Hull  at  that  hour.'  The  plaintiff 
])elieves  this,  acts  upon  it,  and  sustains  loss.  It  is 
well  established  law  that  where  a  person  makes  an  un- 
true statement,  knowing  it  to  be  untrue,  to  another, 
who  is  induced  to  act  upon  it,  an  action  lies.  The 
facts  l)ring  the  present  case  within  that  rule." 

2.  That  the  time-tables  amounted  to  a  contract. 
"  It  seems  to  me,"  said  Wigiitmax,  J.,  "  that  the  pub- 
lication of  these  time-tables  amounted  to  a  i)romise  to 
any  one  of  the  public  who  would  come  to  the  station 
and  pay  for  a  ticket,  that  he  shall  have  one  by  the 
train  at  seven." 


POWER  OF  CARRIER  TO  LIMIT  LIABILITY. 


HOLLISTEll  V.  NOWLEX. 

[19  Weiul.  2;U:  ;?2  Am.  Doc.  455;  Thorap.  Ld.  Cas.  Carr.  Pass.  489.] 

It  was  in  1838,  before  railroads  were  very  numerous, 
that  HoUister  made  a  journey  by  stage  from  Utica  to 


20(5 


LEADING    CASES    SIMPLIFIKD. 


Buffalo,  New  York.  A  tnivellor  had  to  take  an  early 
start  in  those  days,  and  the  sun  had  not  yet  risen 
when  Hollister  got  on  the  coach  of  the  Telegraph  Line, 
and  saw  his  trunk  salely  stowed  away  in  the  boot.  In 
all  the  stage-offices  along  the  route,  and  in  most  of 
the  public  houses,  there  were  hung  large  placards  in 
biir  letters,  Avith  this  notice:  "All  bairij-aLro  sent  or 
carried  on  the  Telegraph  Line  is  at  the  risk  of  the 
owners  thereof."  Whetlier  Hollister  read  any  of 
these  notices  no  one  will  ever  be  able  to  find  out,  for 
no  one  saw  him  reading  them.  To  be  sure  ho  said  he 
never  did,  but  then  he  may  have  lied  about  it.  At 
any  rate,  ])ef<)re  the  coach  had  gone  three  miles  on  this 
memoral)le  journey,  it  Avas  discovered  that  somebody 
had  climbed  up  at  the  back  of  the  vehicle,  cut  the 
strai)s  of  tiie  boot,  and  relieved  the  horses  of  pulling 
two  hundred  pounds  at  least.  Then  Hollister  sug- 
jjested  to  the  ca:i"ierthe  advi.sabilitv  of  recouuinii:  him 
for  his  loss,  and  the  carrier  (as  usual)  cf)uld  not  see  it 
in  that  light.  So  they  (inally  had  to  go  before  the 
Su|)reme  Court  of  New  York,  and  Nowlen's  lawyer 
and  that  tribunal  discussed  the  matter  in  a  friendlv  wav. 

*' Wo  admit,"  said  yotvJeii's  lawijer,  "that  wo  arc 
j)rima  facie  insurers  of  the  projjerty  wo  carry,    but 
the    law  lets    us   make  a  different   contract  with   our 
customers." 

The  court.  "  Yes  ;  but  wo  fail  to  discover  any  con- 
tract here." 

A\nch'niih(wypv.  "  When  W(!  say  :  'Any  one  wanting 
to  travcd  on  our  line  must  take  the  risk  of  their  bair- 
iiraufc,'  and  a  man  seeinij^<-ur  notice,  jjets  in  one  of  our 
coaclies  with  his  baggage,  wo  have  a  right  to  pel  sumo 
that  he  has  accepted  our  terms." 


BAILMENTS. 


207 


The  court.  "  From  his  hiivlnjr  siiid  nothing?  Not  :it 
all.  You  have  no  more  right  to  assume  from  his 
silence  that  ho  consents  than  that  he  dissents.  Silence 
sometimes  signifies  assent,  but  not  in  your  case.  The 
law  casts  on  you  legal  obligations  which  a  party  has  a 
ri<>ht  to  insist  on.  If  a  man  ordered  a  coat  from  a 
tailor  after  he  had  given  him  notice  that  he  would  not 
make  any  coat  for  less  than  $100,  the  assent  of  the 
customer  to  i)ay  that  sum,  although  it  were  double 
the  real  value  of  the  coat,  might  be  implied.  But  if 
the  tailor  had  been  under  a  legal  ol)ligation  not  oidy 
to  furnish  coats  to  his  customers,  l)ut  to  furnish  them 
at  a  reasonable  price,  no  such  im[)lication  could 
arise." 

And    Nowlen    had    to   pay   for    HoUister's   stolen 
trunk. 


LIABILITY  FOR  IXJCRY  TO  FREE  PASSENGER. 


PHILADETiPHIA,    KTC,   R.    CO.   v.  DERBY. 

[U  How.  4()8;  Tliomp.  Ld.  Cas.  Ciirr.  Pass.  81.] 

One  pleasant  day  about  thirty  years  ago,  Mr. 
Derby,  who  was  a  stockholder  in  the  company,  was 
invited  by  the  president  and  officers  of  the  Philadel- 
l)hia  and  Reading  Railroad  to  make  a  little  excursion 
with  them  over  the  line.     Unfortunately  for  him  on 


208 


LEADIXTr    CASKS    SIMPLIFI  lOI). 


'.f] 


that  very  day,  an  cMiijiiKc'r  in  ('liari:;c  of  another  loco- 
motiye  on  the  road,  attempted  an  experiment  Avhicli, 
notwithstandini]^  that  it  is  iinitbrmly  unsuccessful,  is 
still  repeated  at  regular  interyals  to  this  day  — he  tried 
to  have  two  trains  pass  each  other  on  a  single  track. 
The  result  was  disastrous  to  Mr.  Derl)y  and  to  Mr. 
'^orl)y's  boiu's,  and  he  brought  an  action  against  the 
r."  .'oad  for  his  injuries.  The  defence  Avas  that  lie  was 
not  i:  passenger,  as  he  was  tr.avelling  frc(;  of  charge. 
But  i*^  was  held  that  the  duty  of  a  carrier  to  trans[)ort 
safely  <(Ocs  not  arise  from  the  consideration  [)aid  for 
the  seryjce,  but  on  the  contrary',  is  imposed  by  the 
law  even  Avliere  the  service  is  gratuitous.  "  When 
carriers  undertake  to  convey  persons  l)y  the  powerful, 
but  dangerous  agency  of  steam,"  said  tlie  Supreme 
Court  of  the  United  States,  "  public  policy  and  safety 
require  that  the}'  bo  held  to  the  greatest  possible  care 
and  diligence.  And  whether  the  consideration  for 
such  transportation  be  pecuniary  or  otherwise,  the 
personal  safety  of  the  passengers  should  not  ^  ^  left  to 
the  sport  of  chance  or  the  negliijence  of  careless 
ajrents.  Any  ncirliLTenco  in  such  case  may  well  de- 
serve  the  epithet  of  '  gross.'  " 


:\^> 


BAILMENTS. 


201^ 


TRAVELLING    ON    ''FREE  PASS"    WITH    CON- 
DITIONS. 


KAILKOAl)  CO.   V.  LOCKWOOO. 

[17  Wall.  3r)7;  Thomp.  Ld.  Cas.  Carr.  Pass.  ;?78.] 

]\I()st  people  prefer  triivelllng  on  :i  "•  puss  "  to  piiy- 
in*'-  fare.  It  is  sometimes,  though,  a  little  disappoint- 
ing when  you  have  taken  your  seat  in  the  ear,  and 
lKi[)[)en  to  glanee  over  the  "  pass,"  to  liiul  that  on  the 
reverse  side  in  very  small  type  there  is  printed  this 
condition  : 

"Tlio  person  a('C(»i)ting  this  free  tioket  assimies  all  risk  of  aceidents  and 
expressly  a)j:rees  tliat  the  coiiipany  sliall  not  he  liahle  under  unii  circum- 
stances whether  of  nef/liffeiice  of  their  ar/ents  or  othenrise,  for  any  injury  to  the 
porson  or  for  any  loss  or  injury  to  the  property  of  the  passenger  using  this 
ticket." 

The  "deadhead"  will  doubtless  be  gratified  to 
learn  that,  so  far  as  the  Avords  italicized  are  concerned, 
the  American  courts  are  decidedly  averse  to  giving  the 
company  the  benefit  of  them.  Tiie  litigation  which 
^Ir.  Lockwood  carried  on  some  years  ago  has  done 
much  to  firmly  establish  this  principle.  He  took  a 
train  on  the  New  York  Central  Railroad  on  just  such 
a  ticket  with  just  such  a  conditif)n,  which  he  had  re* 
ceived  from  one  of  the  officers  of  the  company,  not  a? 
an  expression  of  friendship,  but  1)ecause  ^Ir.  Lock- 
wood  was  a  drover  and  was  shii)ping  a  good  many 
head  of  stock  over  the  line.  There  was  an  "  acci- 
dent"  and  Mr.  Lockwood  was  hurt.  He  brought  an 
action  and  recovered  a  verdict.  The  railroad,  as  is  the 
custom  of  railroads,  fought  the  case  as  far  as  was  pos- 

14 


m 


•I 


if.  ■'■■ 


<; 


210 


LEAUINO    CASKS    ^IMPLIIIKD. 


sible  —  which  in  this  instaiu'o  was  as  ftir  as  the  Siiprcinc 
Court  of  the  United  States.  But  there  Mr.  Justice 
Bhadlky,  in  a  very  able  and  learned  opinion  which  the 
student  should  not  fail  to  read,  aftirnied  the  judiiinenl 
\\\  favor  of  Mr.  Loekwood.  The  hiw  on  the  subject 
(le  sunnned  up  thus  : 

1.  A  eoninion  carrier  cainiot  lawfully  make  a  con- 
tract for  exeini)tion  from  res[)onsil)ility,  when  sudi 
exemption  is  not  just  and  i'easonal)le  in  the  eN-e  of 
the  law. 

2.  It  is  not  just  and  reasonable  in  the  ey<^  of  the 
law,  for  Ji  common  carrier  to  stipulate  for  exem[)tion 
from  responsibility  for  the  negligence  of  himself  or  his 
servants. 

3.  These  rules  apply  both  to  carriers  of  goods  and 
carriers  of  passengers  for  hire,  and  with  special  t"orce 
to  the  latter.^ 


WHO  CARRIER   MAY  REFUSE    TO  CARRY. 


THl  RSTOX  V.   UXIOX  PACIFC  It.  CO. 

[+  Dill.  :?21 ;  Tlioifi]!.  L(l.  ('tis.  Carr.  Pass.  10.] 

Thurston  was  a  l)ad  man  to  meet  on  a  railroad  train. 


•  As  Lockwood's  pass  wis  given  liiinasaparl  of  the  transaction 
of  carryin;?  his  stock,  it  w.as  held  tliat  ho  was  a  i)asscngoi'  for  iiire 
a.s  much  as  though  lie  had  paid  his  faro.  Tlie  court  did  not  fhore- 
foro  decide  wliat  would  liave  boon  tlie  result  had  ho  been  a  purely 
gratuitous  passenger.  Other  courts,  however,  lui\e  d<!cidod  that 
this  makes  no  difference.    Lawson,  Cent.  Carr.,  sects.  212-221. 


BAILMENTS. 


211 


And  yet  tnivollcrs  were  very  apt  to  run  iijitiiiist  him, 
for  his  Imsiiie.s.s  culled  him  there  verv  iViMiueiitlv.     His 

«,  X  *, 

.sole  stock  ill  tnide  was  three  pieces  of  pasteboard,  and 
he  earned  his  living  hy  mukini>'  snitdl  bets  with  unsophis- 
ticated grangers,  wliom  heg(!n'.'r;dly  met  in  the  smoking 
car,  concerning  the  identity  ot'u  parficnlur  card  of  the 
three.  After  the  game  was  over,  and  when  tlje  shek- 
els of  the  rural  inhabitant  were  de[)osited  in  tlie  jjocket 
ol"  Thurston,  wliat  used  to  i)uz/,le  tlie  granger  was  how 
it  came  about  that  whenever  ho  bet  a  small  sum,  he 
could  generally  locate  the  right  card,  and  wluMU'ver  he 
put  up  his  i)ile,  he  always  selected  the  wrong  one. 
It  was  this  sort  of  thing  that  gave  Thurston  tlie  name 
of"  monte-nuin,"  and  that,  one  day  having  pui'chased 
his  ticket  on  the  defendant's  road,  caused  the  con- 
ductor of  the  train  to  i)revent  him  from  boarding  it. 
The  suit  which  ho  brought  against  tin;  company  gave 
the  court  an  opi)ortunitv  of  stating  in  a  verv  lucid 
way  the  law  concerning  the  light  of  ii  carrier  to  refuse 
to  carry. 

And  here  it  is  in  a  dozen  or  more  linos :  "  The  rail- 
way company  is  bound  as  a  common  carriiu*,  when  not 
overcrowded,  to  take  all  pr()[)er  persons  who  may  ap- 
ply for  transportation  over  its  line,  on  their  complying 
with  all  reasonable  rules  of  the  company.  But  it  is  not 
bound  to  carry  all  persons  at  all  times  or  it  migiit  be 
utterly  unable  to  protect  itself  from  ruin.  It  would 
not  be  obliixed  to  carry  one  whose  ostensible  business 
might  be  to  injure  the  line  ;  one  tleeing  from  justice  ; 
one  going  upon  the  train  to  assault  a  passenger,  com- 
mit larceny  or  robbery,  or  for  the  purpose  of  interfer- 
ing with  the  proper  regulations  of  the  comi)auy,  or  for 
gambling  in  any  form  or  committing  any  crime  ;  nor  is 


212 


LKAOINO    CASKS    SIMPTJFIED. 


B 


',':f 


;Bii 


it  bound  to  ciirrv  persons  iiifcctecl  witli  ('oiituirioiis 
disojiscs  to  the  (luiiii'tT  of  other  passenircrs.  The  p(>rsoii 
must  1)11  upon  liiwl'ul  niid  legitiiuiite  husiiioss.  IIciicc 
defendant  is  not  bound  to  cany  jxTsons  wlio  travel  foi- 
tlio  puipose  of  ganiblinui:.  As  <^aniblin<j;  is  a  crime 
under  the  State  laws,  it  is  uot  even  necessary  for  the 
company  to  have  a  ride  against  it.  It  is  not  bound  to 
furnish  facilities  for  carryinj^  out  an  uidawfnl  i)uri)ose. 
Necessary  force  may  be  used  to  prevent  gaml)lers  from 
enterini;  trains,  and  if  found  on  them  emraufed  in  gam- 
bling,  and  ri'fusing  to  desist,  they  may  be  forcibly  ex- 
pelled." 

So  the  monle-man  could  not  get  any  damages  ; 
but  as  he  had  paid  for  his  ticket,  and  tlie  coni- 
l)any  had  not  refunded  him  the  money,  tiie  judge 
thought  the  jury  should  make  that  u^)  to  him,  and 
they  gave  him  a  verdict  for  $1.74. 


sfli= 


WHAT  IS  ''BAGGAGE"  FOR    WHICH  CARRIER 
IS  HE  SPONSIBLE. 


XEAV  YORK  CEXTRAT^    R.  CO.  v.  FRAT^OFF. 

[100  U.  S.  24;  Thoiup   Ld.  Cas,  Carr.  Pass.  502.] 

A  Russian  countess  of  large  wealth  and  high  posi- 
tion, after  taking  in  London  and  Paris,  concluded  not 
to  die  till  she  had  seen  America.     The  pampered  aris- 


HAIL.MKNT8. 


213 


tocr.'icy    of  Europe    are    not   content   to  tviivcl  with  a 
c'lirpet-saek  ;  and   .so   she   nuist   hrini;  ah)ng  with  lior 
half  a  dozen  trunks,  l)urstini>"    Avith   silU.s,  and  jewels, 
and  laees,  anc'  l<ne  linens,  in   onhn-  that  she  niijiht  not 
he  without  soniethini!:  to  wear  if  she  should  want  to  go 
to  the  opera  in  New  York,  or  he  invited  out  to  dinner 
in  St.  Ijouis.      Her  laces  she  was  j)articularly  proud  of, 
for  thev  had  heen   made;   hy  her  ancestors  upon   their 
i'states  in  Russia.      She   arrived   in   New  York  in  good 
oi'der,  and  so  did  her  trunks  ;   and  all  would  have  heen 
well  had  she  not  made  \i[)  her   mind   to  visit  Chicago, 
for  on  her  way  thither  two  of  her  trunks  (which  was 
all, she  dai-ed  trust   in  that  wicked  city)  came  to  gi'ief. 
On  the  train  between  Albany  and  Niauara  Falls,  some 
ruthless  Nihilist  ransacked  her  wardrobe,  and  failed  to 
return  two   hundred   yards   of  her   much-[)rized   lace. 
Then    the   countess   said    to    the    railroad    company, 
"  <>ive  me  hack  the  needlework  of  my  <>randm()lhers, 
or  give  me  roubles."      But  the  railroad  comi)an3' could 
not,  or  wfMdd  not,  and  then  the  countess  brought  suit, 
and  a  iiiry  thou<»ht  that  the   laces  were  worth  at  least 
$10,000.     The  com[)any   ai)pealed,  l)ut   the   Supreme 
Court  of  the  United  States  decided  that  1  hey  must  pay 
the  $10,000.      Bauijaiie  for  which  you  are  liable  as  an 
insurer,  said  the  court  to  the  company,  is  none  the  less 
I)aggage  because  it  is  extensive  or  valuable.     The  sole 
question    is,   was     it    suited    to   the   condition   of    its 
owner.     If   a    commercial    traveller,     or    a    country 
school-marm,  were  to  carry  thousands  of  dollars  of  ex- 
l)ensive  lace   in  her  trunk,  and  it  were  to  l)e  lost  on 
your  road,  you  would   not  be   liable  ;  hut  here,  your 
passenger  was    a  countess,    and    laces    are    made    for 


-} 


n 


214 


LEAl)I\(J    CASES    JSIMrLll'IED. 


III 


coimtessos,  jiiid  arc  as  necessary  to  them  as  plumairo 
to  peaeoelvs.  If  voii  liad  iiotilied  all  your  nasseiio-ei's 
that  yon  would  not  carry  more  than  s?l()()  worth  oC 
baggage  M'ithont  extra  payment,  or  if  yon  liad  usked 
the  countess  the  value  of  jier  tnmks,  and  she  had  said, 
"  Oh,  not  much,"  it  would  have  been  diU'ercnt*,  but 
you  did  not,  and  she  was  not  bound  to  give  you  uny 
information  you  did  not  ask  for. 


NEULIUENCE. 


215 


XI Y.  —  XECiLIGF.>X'E. 


IXJURY   RESULTIXa    FRO.U    UNINTENTIONAL 

ACCID  .NT. 


■'.1 


BROWN  V.  KEXOALI^. 

[0  Ciish.  i".t-'.] 

The   trouble    in   this  etise  cuino  from   a  dog  tight. 
The    dogs    of     Brown  and  Kendall  respectively  were 
Hirhtingrand  the  hitter,  in  the  hiudal)le  purpose  of  en- 
deavoring to   separate   them  with  the   aid  of  a   long 
stick,  uirtbrtunately  put  out  the  eyo  of  Brown  who, 
unobserved   of    Kendall,    was    standing    behind    hini. 
Brown    brought     an    action,   and    the    question    was 
whether  a  person  is  liable  for  a  purely  accidenttd  and 
unintentional    injury  which    he   may  do   to  another. 
The  court  decided  in  the  negative.     "  The  plaintiff," 
said  Chief  Justice  Shaw,  "  must  come  prepared  with 
evidence  to  show  either  that  the  intention  was  unlaw- 
fid  or  that  the  defendant  was  infaidl;  for  if  the  injury 
'was  unavoidable,   and  the   conduct   of  the  defendant 
was  free  from  blame,  he  will  not  be  liable.     If  in  the 
prosecution   of  a  lawful  act,  a  casualty,  purely  acci- 
dental, arises,  no  action  can  be  supported  for  an  injury 
arising  therefrom." 


216 


LEADIXCr    CASES    .SI.Ml'LII'IED. 


ONE  MUST  so  USE  IITS  PROPERTY  AS  XOT  TO 
INJURE  HIS  NEIGHBOR'S. 


f 

J: 


MM, 


FLETCHEI5   v.  KYI^AXDS. 

[;i  Hurl.  &  C.  7'.H;  L.  H.  1  Hxcli.  2<;.-.;   L.  IJ.  ;5  II.  L.  ;i;W;  1  Tl-omp. 

L(l.  ('lis.  Noii.  1'.] 

Of  the  modorii  Eiiijlisli  c:isos,  on  tln^  l:i\v  of  ncijli- 
genco,  this  one  is  iKn-hin)^  llio  most  important  in  tlu! 
reports.  Messrs.  Ryliuids  &C().,  niill-ownors,  wiint('(l 
a  reseivoir  on  their  land,  and  like  carefnl  men,  eni- 
plo^'ed  a  eompetent  enirineer,  and  first-ehiss  u'orkmcn 
to  make  it.  Durini^  its  construction  the  workmen 
came  U[)oii  some  old  vertical  mine  shafts  of  the  exis- 
tence of  which  no  one  was  j)i"cvion>ly  aware.  These 
thev  carefidlv  tiUed  up  with  soil.  But  when  the  wati'r 
came  to  be  put  in  tiie  reservoir,  it  was  just  like  j)utting 
it  into  an  em[)ty  Ho\ver-i)ot.  It  ran  through  and  diil  a 
world  of  mischief  to  the  ncMghhoring  mines  of  .Mr. 
Fletcher,  who  instituted  legal  [)roceedings. 

liylands  &  Co.  (Id'cndcd  thi;  action,  iliinking  that  as 
they  had  em[)l(;yed  compctciit  i)ersons  to  construct  iho, 
reservoir,  they  woidd  not  be  hchl  responsible.  But 
here  thev  were  mistaken  ;  they  were  connxdled  to  com- 
pensate  Mr.  Fletcher  for  his  damage.  "  If  a  person," 
said  the  court,  "brings  or  accumulates  on  his  land 
anything  which,  if  it  shouhl  escai)e,  may  cause  dam- 
age, he  does  so  at  his  peril.  If  it  does  escape  and 
cause  damage,  he  is  responsible,   however   careful    he 


NEOI.IOEXCE. 


217 


may  have  been,  ami  whatever  [)rec:iuti()u.s  ho  may  have 
taken  to  prevent  the  dauuige."  ^ 


•  Tliere  is  a  difforonco  of  opinion  in  tlio  Ainoiican  conrts  con- 
cerning tlicjnstness  of  tliis  decision.     In  some  States  it  is  followed 
in  others  it  is  not.     Qnalilled,  however,  as  it  has  Ijeen  by  two  later 
decisions,  the  rnle  in  Fletcher  v.  llyhinds,  strikes  the  writer  as  uu- 
assailaole. 

The  first  qualification  was  laid  down  in  Nichols  v.  Marsland, 
L.  K.  10  Kxch.  2.m;  2  K\ch.  Div.  1.  Mrs.  Marsland  was  a  for- 
tunate proprietor  of  some  ornamental  lakes  in  tlie  county  of 
Chester.  She  had  not  made  the  lakes  herself.  They  had  ex- 
isted time  out  of  mind,  and  liad  always  l)orne  the  character 
of  bein'.i  sober,  respoctaI)!e,  well-beliaved  lakes.  But  on  the 
18th  of  June,  1.S7L',  there  came  a  tremendous  storm,  the  like  of 
which  the  oldest  inhai)itant  could  not  remember.  The  rains  de- 
scended, the  11  )ods  came,  and  Mrs.  Marsland' s  lakes  burst,  their 
fetters,  and,  in  the  riot  of  their  new-found  liberty,  swept  into 
eternity  two  or  three  county  bridiies.  Nichols  was  tlie  county  sur- 
veyor of  ("heshiri',  and  brought  this  action  for  tlie  damaije  done.  It 
was  argued  for  the  surveyor,  with  much  plausiljility,  that  Mrs. 
T.Iarsland  was  in  the  same  position  as  a  person  who  kee|)s  a  mis- 
chievous animal  with  knowledue  of  its  pro<)ensities,  and  therefore 
that  iiuiuiry  as  to  whether  slie  had  l)een  neirliixent  or  not  was  need- 
less—  she  kept  the  lakes  at  her  peril.  It  was  held,  howevei',  that 
as  the  lakes  had  been  carefully  constructed  and  maintained,  and 
the  downpour  of  rain  was  so  extraordiiniry  as  to  amount  to  vis 
mnjnr,  the  county  bridsjes  niinht  build  tliemselves  up  —  it  was  no 
concern  of  the  ohl  lady's.     Shirley's  Ld.  C'as.  L'OS. 

Several  years  after,  in  the  case  of  Box  r.  Jui)b,  1  Kxch.  Div.  7(>; 
L'7  Week.  Hep.  41"),  the  same  court  held,  that  for  the  wrongful  act 
of  a  third  parti/,  which  set  in  motion  the  damage,  the  proprietor  was 
no  more  responsible  than  for  vis  major. 


'IS 


218 


LEADING    CASES    SIMPLIFIED. 


I  i^lH  I 


LI  A  BILIT  Y  FOR  IXJURIES  B  Y  ANIMALS. 


MAY  V.  BURHETT. 


;::;Ji  \i- 


j.  ■  ■  ■  1 
1     • '  ■ 

* .  •' 

ifj* 

r 

[0  Q.  R.  101  ;    1  Thoinp.  Ld.  C:is.  N\';r.  174.] 

It  is  rather  diuiirerous  to  keep  a  monkey,  espeeially 
if  you  know  that  it  has  a  fonuiiess  for  ])iting  people. 
Mr.  Biirdett  found  this  out  after  a  little  litigation 
which  took  place  l)etween  himself  and  Mr.  Ma}'.  The 
former  owned  a  monkey,  which  one  day  bit  Mrs.  May. 
The  husband  was  iudiirnaut  and  brought  an  action 
asfainst  the  owner.  The  (luestion  was  whether  it  made 
any  difference  that  Mr.  Burdett  had  not  been  guilty  of 
any  neijliirence  in  securini>;  or  takin<;  care  of  it.  The 
court  held  that  it  did  iiot,  as  "  the  gist  of  action  is  the 
heephifj  of  the  animal  after  knowledge  of  its  miscihiev- 
ous  propensities:"  and  Burdett  had  to  pay  £50  for 
the  injury  to  Mrs.  May.' 


'  The  Ihibility  of  owners  of  animals  for  their  hurtiuir  people  is 
pretty  plain.  If  a  man  has  a  domestic  beast,  snch  as  a  do;;,  a 
horse,  or  a  cow,  he  is  not  iienerally  responsil)Ie  for  any  injury  it 
may  canse.  But  if  he  knows  that  it  is  of  a  mischievous  disposition 
and  is  lil\ely  to  do  damage,  then  he  keeps  it  at  his  i)eril.  If  he 
wants  to  run  no  risk  lie  Iiad  belter  shoot  it  at  once,  for  no  matter 
liow  careful  he  may  be,  he  is  answerable  for  any  hurt  it  may  do  to 
any  jierson.  Lon^  a-^o  a  distini;uislied  judi^e  laid  it  down  that  every 
doLC  was  entitled  to  one  bite,  l)eciiuso  it  took  somethina;  like  this  to 
give  tlie  owner  notice  that  he  was  a  l)ad  do^. 

On  the  otlier  hand,  if  a  man  keeps  a  dangerous  animal,  one 
ford'  nntune,  as  the  books  call  them,  such  as  a  lion,  or  a  bear,  or 
a  wolf,  he  is  answerabli;  in  the  same  manner  as  the  owner  of  a  dog 
accustomed  to  bite.  The  lion  or  bear  is  not  entitled  to  one  bite, 
for  the  owner  knows  from  the  beginning  what  his  i)et  will  do  if  he 
only  gets  a  cliance. 


NEGLIGENCE. 


2li) 


SELLING  POISON    WITH  HARMLESS   LABEL. 


THOMAS  V.  WIXCHESTEU. 


[C.  N.  Y.  ;5'.»7;   1  Thomp.  Lcl.  Cas.  Neg.  224.] 

Mr.  Thoinas  walked  one  day  into  a  country  drug- 
store kept  by  a  Dr.  Foord  and  asked  the  drujrgist  for 
some  extract  of  dandelion,  Avliich  the  family  physi- 
cian had  prescribed  for  Mrs.  T.  The  druggist  took 
down  from  a  shelf  a  jar  labelled  "  }r  Ih.  Dandelion , 
prepared  by  J.  A.  Gilbert,  No.  108  John  Street,  iV. 
Y.,  Jar.  8  oz.,''  and  gave  Mr.  Thomas  the  quantity 
called  for.  This  the  hitter  gave  to  his  wife,  but  with 
nearly  fatal  results,  for,  as  it  afterwards  turned  out,  it 
was  belladonna,  a  deadly  poison,  that  the  jar  really 
contained.  The  druggist  was  quite  imiocent  in  the 
matter,  for  it  had  been  sold  to  him  for  dandelion  by 
Aspinwall,  a  druggist  in  New  York,  who,  in  turn,  had 
purchased  it  as  such  from  AVinchester,  a  drug  manu- 
facturer. The  latter  had  not  manufactured  the  extract 
in  this  particular  jar,  but  had  i)urchased  it,  and  put  it 
u[)  for  the  trade  and  labelled  it  with  (iilbert's  name, 
who  was  enq)l()3'ed  by  him  as  a  clerk.  Mr.  Thomas 
now  broui^ht  an  action  auainst  Winchester  for  the  in- 
juries  sustained  b}'  his  wife  in  taking  the  poison. 
Winchester  tried  to  escape  liability  on  the  grounil  that 
there  was  no  privity  between  him  and  the  plaiiititf,  the 
drug  having  previously  i)assed  through  so  many  hands. 

•'  If  A,"  argued  Winchester's  counsel,  "  build  a 
wagon,  and  sell  it  to  B,  who  sells  it  to  C,  and  C  hires 


3 


II 


m 


220 


LEADING    CASES    SIMPLIFIED. 


it  to  D,  wlio,  ill  consequence  of  the  neirlioence  of  A 
in  building  it,  is  overturiuHl  and  injured,  D  ciinnot  re- 
cover diini:ii»e-s  aijiilnst  A,  the  bnikler,  for  A's  ohli<>;i- 
tion  to  build  the  wagon  proijerly  arises  solely  out  ol' 
his  contract  with  B."  The  court  admitted  that  this 
was  so,  but  the  present  case,  the}'  said,  stood  on  a 
dil'ereiit  footinu'.  Winchester's  lial)ilit  v  arose,  not  out 
of  any  contract  or  privity  between  him  and  the  person 
injured,  but  out  of  the  duty  which  the  law  imposed  on 
hini  to  avoid  acts  in  their  nature  <langerous  to  the  lives 
of  others.  Therefore,  a  dealer  in  drugs  or  medicines 
who  ciirelessly  labels  a  deadly  jjoison  as  a  harmless 
medicine,  antl  sends  it  so  labelled  into  market,  islial)le 
to  all  persons  who,  without  fault  on  their  \y.u-t,  are  in- 
jured by  using  it  in  c()nse(iuence  of  the  false  label. 
And,  therefore,  Winchester  was  liable  for  the  injury  to 
the  wife  of  Thomas. 


REMOVIXG  SUPPORT  OF  LAND. 


PANTox  V.  iior.i.Axn. 

[17  Johns.  '.VI;    s    Am.    Dec.  ;i(i;i;    1   Tliomi).   Ld.  ('as.  Ne^'.  L'U).} 

Panton  and  Holland  were  owners  of  contiguous  lots 
on  Warren  Street,  in  New  York  City.  In  the  course 
of  erecthig  a  house  on  his  lot,  Holland  dug  sonic  dis- 
tance below  the   foundations   of  Panton's  house,  and 


NEGLIGENCE. 


221 


the  result  was  that  one  of  the  corners  of  Panton's 
liouse  settled,  the  walls  were  cracked  and  much  injury 
was  done  to  the  buihllng.  For  this,  Panton  brought  an 
action,  claiming  that  he  had  a  right  to  lateral  support 
from  the  land  of  his  neighbor,  not  oidy  for  his  own 
soil,  but  also  for  the  buildings  which  he  put  up  on  it, 
and  that,  having  removed  this  lateral  support,  Panton 
was  absolutely  liable  for  the  damages  caused  thereby. 
But  the  court  held  that  if  injury  is  sustained  to  a 
l)uildiug  in  consequence  of  the  withdrawal  of  the 
lateral  support  of  the  neighboring  soil,  done  with 
reasonable  skill  and  care  to  avoid  unnecessary  injury, 
there  can  be  no  recovery,  and  therefore,  if  Holland 
had  not  been  negligent  in  his  digging,  he  could  not  be 
made  to  pay  for  the  damage  to  Panton's  house. 


pijiisoxs  coMiyrr  o.y  another's  premises. 


IXl)Elt3lAUU  V.  1)A3IES. 

iL.  ]{.  1  ('.  r.  L'74;   L.  K.  L>  ('.  V.  :?11 ;   1  Tlioiiip.  Ld.  Cas.  Ncg.  283.] 

Mr.  Dames  was  the  owner  of  a  suuar  refinei'v,  and 
employed  oik;  Duckham,  a  gas-fitter,  to  imi)rove  his 
gas-meter.  Duckham  got  his  work  done  l)y  a  certaui 
Saturday  evening  ;  but  it  was  arranged  that  he  or  one 
of  his  workmen  should  come;  on  the  following  Tuesday 
to  sec  it  the  improvement  was  working  satisfaetordy. 
Accordingly,  on  the  Tuesday  the  plaintitf,  Indermaur, 


222 


LKADIX(}    CASKS    SIMl'LIFIKD. 


ill 


presented  liiinst'U"  !i.s  Diickliiuu's  i'ei)reseiit:itive  to  look 
lit  tlie  g;is-nieter.  Now  it  happeiuMJ  that  on  tlie  pi-em- 
ises,  and  level  with  the  floor,  there  was  an  nnfenecd 
shaft  nsed  for  the  i)iirposo  of  hanlingnp  ])alcs  of  sugar. 
When  tiie  shaft  was  being  used  for  that  pnrposo,  it 
was  usual  and  neeessarv  that  it  should  be  unfenced  ; 
l)ut  when  not  being  used  there  was  no  partieular  rea- 
son why  it  should  not  be  fenced.  The  experienced 
case-reader  will  not  be  surprised  to  hear  that  Inder- 
niaur  was  unfortunate  —  or  fortunate  —  enough  to  fall 
through  this  shaft.  The  sugar  peojjle  denied  their 
liability  to  him,  contending  that  he  was  a  mere  licensee, 
and  that  they  were  under  no  partieulai-  duty  towards 
him.  It  was  held,  however,  that  he  was  not  a  mere 
licensee,  as  he  had  come  on  lawful  business,  and  that, 
as  the  hole  was  from  its  nature  unreasonal)ly  danger- 
ous to  persons  not  usually  emi>loyed  on  the  ])remises, 
the  defendant  was  lial)le.  The  oecu[)ier  of  i)remis('s, 
said  the  court,  is  not  bound  to  see  that  his  i)i'einises  are 
in  such  a  safe  condition  that  a  trespasser  or  a  mere 
licensee  coming  upon  them,  will  be  in  no  dauiicr  of 
breaking  his  bones  ;  but  with  rcspcH't  to  a  i)erson  who 
has  come  on  lawful  business,  and  on  the  invitation  of 
the  occupier,  it  is  settled  law  that  he  "  using  reasona- 
ble care  on  his  own  part  for  his  owi  safety  is  entitled 
to  ex'[)ect  that  the  o('cui)ier  shall,  on  his  i)art,  use  rea- 
sonable care  to  i)revent  damau'e  from  unusual  dauiicr 
which  he  knows  or  ought  to  know:  and  that  where 
there  is  evidence  of  negh^ct,  the  question  whether  such 
reasonable  care  has  been  taken  by  notice,  lighting, 
guarding  or  otherwise,  and  whether  there  was  contril)- 
utory  negligence  in  the  sufFei'er,  nnist  be  determined  by 
a  jury  as  matter  of  fact." 


PI- 


NEGLIGENCE. 


223 


TXJUEIES   FROM  NON-REPAIR  OF  BUILDINGS. 


TOr>l>  V.  FLIGHT. 


[!>  C.  B.  (X.  s.)  ICS.] 


The  late  lauiciited  Mr.  Flight — the  luenioiy  of  the 
litiirious  is  blessed  —  houiiht  a  shaky  old  house  next 
door  to  a  ehnrch.  This  he  let  to  Ijeiijamiii  Batt,  who 
had  f)cciipied  it  ))ut  a  short  time  when  it  fell  down  on 
the  ehurch.  For  this  injury  an  aetion  was  brought 
against  th(>  landlord.  ^Ir.  Flight  tried  to  make  it  out 
that  liatt,  the  tenant,  was  the  responsible  party,  but 
the  court  held  that,  as  Flight  had  let  the  house  when 
he  knew  it  to  be  iu  a  verv  dan<>erous  condition,  and  as 
the  building  had  fallen  through  old  age,  arul  not 
through  th(!  default  of  the  tenant,  it  was  he,  the  land- 
lord, who  must  pay.' 


'  Till!  5j;i'iH'riil  riilo  is  that  the  occupier,  ;iiul  not  liis  laiullord,  is 
rcsi)onsil)lo  for  any  injury  urisiui];  to  a  tlilnl  person  througli  the 
IH'emises  bcinij  out  of  repair.  And  it  does  not  niucli  matter  liow 
careful  he  has  been,  if  he  has  not  succeeded  in  makin,^  liis  premises 
safe.  A  year  or  two  ago  a  ^ood  old  woman  was  toddling  down  a 
London  street  one  afternoon  when  a  lari;e  lamp,  which  was  sus- 
pended from  the  front  of  a  house  and  projected  several  feet  across 
the  pavement,  fell  njion  her  and  injured  her  severely.  The  occn- 
l)ier  of  the  house  was  tenant  under  a  lease,  and  a  short  time  before 
had  noticed  that  the  lamp  was  jjetting  out  of  repair,  and  had  em- 
ployed a  competent  contractor  to  put  it  riiiht.  lie  thoui^ht,  there- 
fore, that  he  had  done  as  much  as  could  be  expected  of  him.  lie 
tliought  wronii.  "The  question  is,"  said  Lrsii,  ,T.,  "what  is  the 
duty  of  an  occupier  who  has  a  lamp  in  the  position  of  that  of  the 
defendant  ?     Is  it  his   duty  al)solutely  to  maintain  that   lamp   in 


1 


w 


224 


LEADIXCr    CASES    SIMI'LIFIEI). 


if'..    , 


i2£*S  irS^E  LOQUirun  —  PliESUMPTTOX  OF 
NEGLIGENCE  FROM  ACCIDENT. 


«YKXi:    V.   150A1>I.E. 

[2  Hurl.  v<:  C.  722;  Bij?.  Ld.  Cas.  Torts,  nTs.] 

Olio  plcasiint  day  in  July,  Mr.  Bynio  wis  walkiiiij: 
down  ji  London  street,  when  a  barrel  of  ilonr  fell 
^roin  a  window  of  a  l)nildini;  In^  was  passinir,  ])lnin[)  on 
liis  licad.  The  suhsefjuent  proceedings  inrei'estcd  Mr. 
Byrne  no  more,  he  was  taken  homo  in  a  hack,  and  it 
was  some  time  before  he  was  aI)lo  to  get  out  of  the 
house.  When,  however,  ho  had  sufficiently  recovered 
to  visit  the  scene  of  the  accident,  ho  found  that  the 
buildin<r  was  occupied  bv  Mr.  Boadle,  a.  flour-dealer, 
and  that  it  was  one  of  Mr.  Boadle's  barrels  that  had 
kept  him  at  homo  so  lonir.  Mr.  Byrne  broui^ht  !'n  ac- 
tion at  once  aijainst  the  flour-dealer,  alle<;iin'  that  the 


proper  repair,  or  to  enipl')y  a  competent  person  to  repair  it?  I  ap- 
preliend  that  tlie  wider  duty  is  inciunbunt  on  tlie  occupier."  And 
so  they  all  api)rehended,  and  the  i)laintiff  recovered.  Tarry  v. 
Ashton,  1  Q.  H.  Div.  IHO.  But  sometinies  the  landlord  is  the  man  to 
looiv  to.  "There  are  only  two  ways,"  it  is  said  in  a  recent  Eni;;- 
lish  case  (Nelson  v.  Liverpool  Brewery  Co.,  2  C.  I'.  Div.  210),  "in 
which  landlords  or  owners  can  be  made  liablo  in  the  case  of  an  in- 
jury to  a  stranijer  by  the  defective  repair  of  i)remises  let  to  a  tenant, 
the  occui)ier,  and  the  occupier  alone,  beiu'^  priinufitric  lial)!e,  — ■ 
first,  in  the  case  of  a  contract  by  the  landlord  to  do  the  repairs, 
where  the  tenant  can  sue  him  for  not  repairing;  secondly,  in  the 
case  of  a  nusfeasance  by  the  landloril,  as  for  instance  where  h'!  lets 
l)remises  in  a  ruinous  condition."  Todd  c.  Flight  illustrates  the 
second  exception.     Shirley  Ld.  Cas.  20(5. 


ir» 


m 


NKGLIOEXCK. 


225 


latter,  by  his  serviuits,  hud  so  negligently  moved  his 
1);inels  as  to  injure  him  to  the  extent  of  $250  at  least. 
The  llowr-dealei-  ohieeted  that  some  evidence  of  ne<»'li- 
gencc  on  liis  part  must  he  shown,  but  the  court  held 
that  from  the  mere  fact  of  the  accident  a  presumption 
of  nei:liiienc(!  arose.  "  It  is  the  dutv  of  iiersons  Avho 
keep  barrels  in  a  warehouse,"  said  Chief  Baron  Pol- 
loch,  '-to  take  care  that  they  do  not  roll  out,  and  I 
think  that  such  a  case  would,  beyond  all  doubt, 
afl'ord  prhna  facie  evidence  of  negligence.  A  barrel 
could  not  roll  out  of  a  warehouse  without  some  neir- 
ligence,  and  to  say  that  a  i)laintifF  who  is  injured  by  it 
must  call  witnesses  from  the  warehouse  to  prove  neg- 
ligence, seems  to  mo  [)re[)()sterous.  So,  in  the  build- 
ing or  repairing  a  house,  or  })utting  pots  on  the  chim- 
neys, if  a  person  passing  along  the  road  is  injured  by 
som(!thing  falling  upon  him,  I  think  the  accident  alone 
would  l)e  priiiKi  facie  evidence  of  negligence." 


!i 


IIESPONSIBILITY    OF    MASTEE    FOR     WILFUL 
ACTS  OF  SERVANTS. 


3Ic3IAXrs   V.  CUICIvETT. 

[1  East,  10(;;  2  Thoinp.  Ld.  Cas.  No?,'.  8(!5.] 

Mr.  Crickett's  servant  Brown  had  a  grudge  against 
his  nciiilibor  McManus,  and  he  oii!v  waited  for  a  chance 

15 


n 


22(1 


LEADING    CASKS    SIMI'LiriKD. 


•t 


(;ic:: 


M 


III- 


i 


to  injure  one  of  tlie  McMiuuis  family  in  some  way.  At 
liisl  an  opportunity  oHorcd  itself.  Drivinj^  homo  his 
master's  earriaije  oni?  evenini;  ahont  dusU,  Brown  was 
deli<;hte(l  to  see  ahead  of  him  the  old  I'our-wluieled 
chiii'-e  ^>f'loniiing  to  Mr.  MeManus,  and  seated  in  it  was 
the  owner  himself,  alone  and  unatton(h'U.  Brown 
whi[)ped  up  his  team  and  (hished  right  into  the  chaise, 
ui)setting  it  in  tiio  middle  of  the  road  and  landinu"  Mr. 
McManus  on  an  adjoining  door-stej).  Brown  heing, 
of  course,  an  irresponsible  fellow  whom  no  eivil  judg- 
ment would  hav(^  disturbed  in  the  least,  Mr.  M<'Manns 
l)rouuht  an  action  auainst  Mr.  Ci'icUett,  claiming  that, 
although  the  latter  was  not  present  at  the  time,  he. 
was  nevertheless  answerable  for  the  wilful  and  mali- 
cious act  of  his  servant.  But  the  court  did  not  agri'c 
to  this,  l)eeause  they  said  that  when  a  servant  ([uits  sight 
of  the  ()])ject  for  which  he  is  employed,  and  without 
having  in  view  his  master's  orders  })ursues  that  Avhich 
his  own  malice  suggests,  he  no  longer  acts  in  pursu- 
ance of  the  authoritv  iriven  him,  and  his  master  will 
not  l)e  responsible  for  such  act.^ 


*  A  principal  or  master  is  !ins\vi'riil)le  in  daniajzes  for  wronyH 
coinuiittcd  l)y  liis  a^ciit  or  servant  wliilc  uctiui^  al)()iit  his  l)usiiiL's«s. 
This  is  tlie  {general  rule.  lint  in  order  that  this  may  bo  so  the  ser- 
vant must  have  been  actini;  in  the  course  of  Ids  reiiular  employ- 
ment. If  while  driviuL?  me  or  driving  on  r.ij  business  my  servant 
neglijtently  injures  a  person,  I  am  liable.  lint  if  the  enterprise  is  en- 
tirely the  servant's,  —  if,  for  instance,  he  takes  his  master's  carriage 
without  leave,  for  purposes  entirely  his  own,  —  the  master  is  not  re- 
sponsible. One  May  Saturday  in  18(!1),  a  wine  merchant  sent  a  clerk 
and  carman  with  a  horse  and  cart  to  deliver  wine  at  B.,  and  to  briufj; 
back  a  quantity  of  empty  bottles  to  the  ollices,  which  wore  in  M. 
On  the  homeward  journey,  after  crossiiJg  London  Bridge,  they 
should  have  turned  to  the  right;  instead  of  that  they  turned  to  the 
left,  and  went  in  the  opposite  direction  on  some  private  matter  of 


NKOLKiENCE. 


227 


EMPLOYER  NOT  LIABLE  Fol!  XEGLIGENCE  OF 
INDEPENDENT  CONTRACTOR. 


HIT^r^IAlU>  V.  RfCHARDSON. 


[3  Gray,  ;U;t;  2  Thoiup.  hil.  Ctis.  Ne;;.  8G8.] 

Mr.  Ric'liiU'dson  niiulo  iiii  Mgroeinoiit  with  a  contrac- 
tor ikuikhI  Shaw  tliat  the  hitter  shouhl  inaU(;  .some  al- 
terations on  a  huihling  of  his,  in  CaniI)ri(lgo,  Mass. 
Tn  pnrsnanee  of  this  agreement  ono  of  Shaw's  work- 
men  who  was  engaged  in  hauling  lumber  to  the  place, 


the  clerk's.  Wliil(!  tlius  uoiiiLi  <iiiite  iiiiaiiist  tlu'ir  orders  tliey  ran 
over  a  chilil.  It  was  held  that  the  wine  merchant  was  not  respou- 
sible.     Whatman  v.  Pearson,  I..  15.  :{  V.  V.  4l'2. 

And  a  master  is  not  responsiljle  for  the  wilfnl  and  malicious  act 
of  his  servant  while  actini;  in  his  employment,  bnt  which  wilful  and 
malicious  act  he  has  neither  ordered  nor  conllrmed.  McManus  v. 
Cricket t  illustrates  tiiis  exception.  The  student,  however,  should 
i)e  careful  to  note  that  this  doctrine  does  not  interfere  with  the 
cases  where  a  master  is  hehl  liable  for  the  negligent  or  malicious  act 
of  a  servant,  who  had  no  purpose  but  the  execution  of  his  master's 
orders.  For  example,  when  a  master  authorizes  his  servant  to  use 
force  about  his  business,  the  former  is  liable  when  the  hitter  uses 
more  force  than  the  master  intended  he  should.  A  railroad  com- 
pany instructs  its  conductors  that  if  a  passeuLter  will  not  pay  his 
fare  they  are  to  eject  him,  nsiiii;  force  if  he  will  not  jjo  without  it. 
Under  this  authority  a  conductor  demands  a  faro  from  a  passenger 
who  refuses  to  i)ay  (perhaps  because  he  has  already  bousjlit  a 
ticket  whicli  he  has  lost,  or  for  some  other  reason),  and  who  refuses 
to  leave  the  car.  The  conductor  calls  the  brakeman,  and  they  pro- 
ceed to  eject  him,  i)nt  in  doing  so  they  use  far  more  force  than  is 
necessary  and  the  passenger  is  injured.  For  this  act,  though  wil- 
ful and  malicious  on  the  servants'  part,  the  compauy  will  bo  liable. 
JSee  2  Tliomp.  Ld.  Cas.  Neg.  884-890. 


!|' 


22« 


LKAOIXa    CASKS    .SIMIM.IFIKI). 


— u 


li-li  ! 


I 


vorv  lu'ixliilcnlly  :i11()\v(m1  soiiio  of  it  lo  rcMiii'm  in  the 
street  over  iiiijflit.  The  ('oMse(|iieiU'o  was  timt  wiien 
Ml".  Ililliard  drove  jilonir  llie  sti'oet  that  eveniiijjr,  his 
liorso  took  t'ri_i;ht  at  the  [)iIo  tiiere,  and  the;  driver  was 
thrown  iVoni  his  wai^on  nud  hadly  hurt.  Hilli.ird 
brought  an  iietion  a^jainst  Kieiianlson  for  daniai.''es,  Iml 
witlioul  .snecess,  it  In'inij;  lield  that  Shaw  heini;  an  in- 
dependent  eontrai'tor,  he,  and  not  Richardson,  had  tiie 
control  ol'  tijo  workman,  and  it'  anv  one  was  liablo  it 
was  Shaw.' 


'  Tlie  law  on  this  subject  was  very  consisoly  stated  by  an  emi- 
nent Enjilisli  jiitljie  some  ten  years  a^o.  "  In  aseertaiiiiiifi  who  is 
liable  for  the  act  of  a  wroniJt-doer,"  said  he,  "you  nnist  look  to  the 
wronir-doer  himself  or  to  the  (Irst  person  in  the  ascendinix  line  who  is 
theemployer  and  lias  eontrol  over  the  work.  You  eannot^o  further 
back  and  make  the  employer  of  that  i)erson  liable."  Wii.i.r.s  ,1.,  in 
Murray  r.  Currie,  L.  U.  0  C.  V.  24.  Hut  as  there  art;  exceptions 
to  every  ride,  we  are  ])repared  to  llnd  some  here;  and  the  student 
should  note  the  followiiii^  cases  as  beiiin  the  most  ini'iortant  ex 
ceptions  to  the  rule  that  for  the  neiilij;ence  of  an  independent  con- 
tractor the  empU)yer  is  not  answerable  :  — 

1.  Wlicrr  till'  cniphnjcr  pcrsitnallij  intorfi'rrx.  The  proprietor  of 
some  newly  built  houses  had  his  attention  drawn  by  a  j)oli<'  mi  '  ■ 
the  fact  that  a  contractor  lie  had  employed  to  make  i  dr  w  had  itll 
a  heap  of  {xravel  by  the  roadside.  Tiie  propr'  '  ,i  he  wouli' 
get  it  removed  as  soon  as  possible,  and  pal  ..m  to  cart  i' 
away.  Tlu;  man  did  not  do  his  work  thoroii  >  enouirh,  and  a 
person  drivim;  home  was  ui)set  and  injured.  In  an  acti  a  by  this 
person  ajiainst  the  propri<'tor,  it  was  urixed  that  it  wa  the  con- 
tractor who  was  liable.  Hut  the  proprietor  was  held  liable  on  the 
ground  that  it  did  not  appear  that  the  contractor  had  undertaken  to 
reinovi!  the  gravel,  and  the  i)roprictor  had  busied  himself  about  it. 
Burj^ess  v.  Gray,  1  ('.  H.  .')7S. 

2.  Where  the  thimj  contracted  to  he  done  is  unlniofiil.  A  company, 
without  the  special  powers  for  that  purpose  which  they  oujjht  to 
have  had,  emi)loyed  a  contractor  to  open  trenches  in  the  streets  of 
Sheflield.  The  plaintiff  walkinj;  down  the  street  fell  over  a  heap  of 
stones  left  there  by  the  contractor,  and  broke   her  arm.     She  suc- 


(  ' 


NKOLIOENCK. 


22i) 


UAinr.iTY  or  master  for  injiiiy  to  fel- 

/.nW-SERVAXT. 


i»Hii-:sTrj:v  v.  fowi.eu. 


[3  Mt'L'.  &  W.  1  ;  L'  'riioiiii),  J,(l.  Ciis.  Nc'-i.  1)19.] 

Fowler  w:is!i  Ixitcljcr  mikI  Priestley  was  his  innn.  It 
was  Priestley's  intercvstini^  duty  to  tiiko  moat  around  in 
avail  to  tli(^  various  eiistoiners.  These  seem  to  have 
Ix'eii  pretty  numerous,  for  one  day  such  a  (juantity  of 
shouldei's  of  mutton  and  rounds  of  l)e(>f  were  put  on 
board  that  the  van  Itroke  down  and   Pi-iestlev's  thiirh 


ceedc'cl  in  fretting:  diunaires  out  of  tlu;  company,  tlu;  distinction  be- 
ins;  clL'iirly  drawn  bctwoon  a  contractor  Ix'inj;  employed  to  do 
sometiiin;;  lawful  and  to  do  soinetldnj;  unlawful.  Ellis  v.  SlielUeld 
Gus  Consunu'r  Co.,  2  HI.  &  IJl.  7<lii. 

3.  ^Dicrr.  the-  thiii'j  contrnctrd  ^<  ///■  (Idiu'  is  jii'i-frcth/  hm'fitl  in  itself, 
hut  iujnriiiUH  con-Muiuenccs  miu^t  in  the  natural  cnursn  of  thiwjs  arise, 
%inless  effectual  means  to  prevent  them  are  adopted.  Mr.  Robbins,  of 
Chicago,  had  let  to  one  lUittou,  the  contract  to  biuld  a  ntore- 
liou.se  on  his  lot,  whii-li  work  rcriuircd  an  excavation  to  l)e  made  in 
tlie  street,  tliat  if  uuLrnarded  was  ii;il)le  to  entrap  some  unwarj' 
pedestrian.  JJutton  after  he  liad  made  the  excavation  neglected 
to  {juard  it,  and  a  iieilestrian  fell  in,  as  was  to  be  expected.  Under 
these  circumstances  it  was  lield  tliat  Ko!)bius  was  liable  for  the  In- 
jury.    Robbins  r.  Chicaiio,  2  Black,  41  s;  \  Wall,  i\" . 

4.  117/(77'  the  nnph>;i<'r  is  hound  h'j  statute  to  do  a  thiiuj  cjlieiently. 
A  railroad  company  were  authorized  by  act  of  Parliament  to  inalie 
.".n  opening;  bridj;e  over  a  naviL^abie  river.  Thvy  e;ni)l()yed  a  ('ou- 
fraclor,  and  that  gentleman  ingeniously  made  them  a  bridge  wiiicli 
wouldn't  open.  The  plaintiff's  vessel  was  in  consequence  pre- 
vented from  navigating  the  river,  and  the  company  were  held 
responsible  to  him.  Hole  c.  Sitting  Bourne  II.  Co.,  (J  Hurl.  &  N. 
488 ;  Shirley's  Ld.  Cas.  1'02. 


I  ii 


2;}() 


LKADlXa    CASKS    8I.M1'LIFIKD. 


m 


;::;ji 


i'l 


li-i 


'Si 


,'  '' 


r 


If 


i;f 


was  (Vactiirod.  Tlio  hiitxilior  boy  now  bionglit  an  ac- 
tion Mirainst  his  niastor,  hut  it  was  hohl  that  the  action 
would  not  lie.  "  It"  the  niastcr  ho  liahlo  to  the  ser- 
vant in  this  action,"  said  Lord  Aiungkk,  "  tho  princi- 
ple of  that  liahilit}'  will  1)0  found  to  carry  us  to  an 
alarniinir  extent.  IIo  who  is  ros[)onsiblo  by  his  <ron- 
eral  duty,  or  by  tho  tor  jus  of  hi3  contract,  for  all  tho 
consc(iuoncos  of  negligcnco  in  a  matter  in  which  he  is 
tho  principal,  is  responsible  for  tho  negligence  of  all 
his  inferior  agents.  If  tlu;  owner  of  the  carriage  is 
therefore  res[)onsible  for  tho  sufHcioncy  of  his  carriage, 
to  his  servant,  he  is  •.•esponsiblo  for  tho  negligcnco 
of  his  coach-niaUer,  or  his  harnc  >:s-niakcr,  or  his 
coachman.  The  footman,  therefore,  who  rides  bo- 
hind  tho  carriage  may  have  an  action  against  his 
master  for  a  defect  in  the  cai'riage,  owing  to  the 
negligence  of  the  coach-maker,  or  for  a  defect  in 
the  liarness,  arising  from  tho  negligence  of  tlu?  har- 
ness-maker, or  for  drunkenness,  neglect,  or  want 
of  skill  in  tlio  coachman  ;  nor  is  there  any  reason 
why  the  [)rincipie  would  not,  if  ap[)licable  in  this 
class  of  cases,  extend  to  many  others.  The  mastei-, 
for  exam[)le,  would  be  liable  to  the  servant  for  the  ni'gli- 
gonce  of  tho  chambermaid  for  [)utting  him  into  a  dam[) 
bed  ;  for  that  of  the  u|)h()lstoror,  for  scmding  in  a  crazy 
bedstead.,  whei'cby  he  was  made  to  fail  down,  while 
ash'cp,  an<l  injure  himself;  foi*  tho  negligcnco  of  the 
cook,  in  not  ])ro[)crly  cleaning  the  co[)[)cr  vessels  used 
in  th(i  kitchen  ;  of  tho  butcher,  in  su[)i)lying  the  family 
with  moat  of  a  cpiality  injurious  in  tho  health  ;  of  the 
builder,  for  a  defect  in  the  foimdation  of  tho  house, 
whereby  it  fell  and  injured  Imth  thc^  master  and  tho 
servant  by  the  ruins.     Tho  inconvonionco,  not  to  say 


NEGLIOKXCE. 


231 


the  absurdity,  of  these  consequences  airords  a  sufficient 
ariruuient  against  tlie  application  of  tliis  principle  to  the 
present  case." 


FARWELT^  V.  BOSTON,  ETC.,  R.  CO. 

[i  Mete.  4!>;   li  Thomp.  Ld.  ('as.  Nci,'.  !)-'4.] 

Farwell  was  an  engineer  on  the  Boston  &  Worces- 
ter llailroad,  and  one  da}*"  late  in  October,  l8o7,  was 
running  his  locomotive  (behind  which  were  several 
passenger  ears)  along  the  road  as  usual,  when  all  of 
a  sudden  the  locomotive  lea[)(Hl  from  the  track,  and 
after  cavorting  round  in  tlu;  ditch  for  some  time,  came 
to  a  standstill,  not,  however,  until  it  had  broken  sev- 
eral of  Farwell's  bones.  The  cause  of  this  deplorable 
accident  was,  as  often  happ<_Mis,  the  negligence  of  one 
Whitcomb,  who  had  charge  of  the  switch,  and  who 
had  very  carelessly  left  itoi^Mi.  Farwell  now  sued  the 
coin[)any  for  the  injury,  and  the  case  came  l)efore  the 
Sin)reme  Judicial  Conrt  of  Mas.saehus(>tts.  "This  is 
an  action  of  new  imi)ressi()n  in  our  courts,"  said  Chief 
ilnstice  Sii.vw,  "and  involves  a  princii)le  of  great  im- 
portances It  [)res('nts  a  case  where  two  persons  are 
in  the  service  and  emi)loyment  of  one  company,  whose 
business  it  is  (o  construct  and  maintain  a  railroad,  and 
to  employ  their  trains  of  c:ii's  to  carry  [)ersons  and 
nu'rchandise  for  hire.  They  arc  a[)[)ointed  and  em- 
ployed by  the  same  ('oini)any  to  perform  sejjarate  duties 
and  services,  all  tending  to  the  accomplishment  of  one 


H! 


232 


LEADIN(^    CASF'.S    SIMPLIFIKI). 


I*     > 


••«•, 


1 :  ' 


w 


HZ 


5!!f 


f'5!l 


and  the  same  purpose  —  that  of  the  safo  and  rapid 
transmission  of  the  trains  ;  and  thoy  are  paid  for  their 
respective  services  according  to  the  natniv^  of  tlieii"  rt'- 
spectivo  duties,  and  the  hihor  and  skill  recjuired  for 
their  proper  performance.  The  question  is,  whether, 
for  damages  sustained  by  one  of  the  persons  so  em- 
ployed, ])y  means  of  the  Ciirelessness  and  negligence  of 
another,  the  parly  injured  has  a  remedy  aLrainst  the 
common  employer."  This  (piestion  the  court  resolved 
in  the  negative,  and  Farwell  was  thus  unable  to  obtain 
danniges  for  his  injury  from  the  company.' 


'  It  is  not  often  that  .i  sorvant  c:ui  l)rin'4  an  action  a!j;ainst  his 
master  in  respect  of  an  injury  sustained  in  tlio  course  of  tlie  ser- 
vice. He  is  supposed  at  the  time  of  onteriuLt  on  tlie  service  to  liave 
contemplated  all  the  ordinary  risUs  thereof;  to  have  made  allow- 
ance for  tliera  in  liis  waives,  and  he  is  not  1)ound  to  ri-^k  his  safety, 
but  may  decline  to  enter  into  the  si-rvice  if  he  thinks  there  an-  too 
many  danucers.  One  of  these  risks,  which  he  is  taken  to  have 
contemi)lated,  is  the  risk  of  one  of  his  fellow-servants  c-.i'^am'd  in  a 
common  em[)loynient,  neitlii!;cntly  causin?^  liim  an  injury;  and  in 
such  a  case  tlu;  master  could  not  Ik!  successfully  sued.  Take,  for 
instance,  the  case  of  a  railroad  accident  ha|)penin^  throuy;h  the  en- 
gineer's ne^ilijjence :  ev^ry  ordinary  p;issen,iier  who  has  l)eeu  in- 
jured can  get  compensation  out  of  tlie  company;  but  tlw  conductor, 
brakeman,  and  the  llreman,  no  matter  how  innocent  of  neirliiier.ce, 
cannot;  they  are  fellow-servants  of  the  engineer,  and  engaged  in  a 
common  employment. 

It  is,  however,  a  master's  duty  to  take  reasonable  precautions  to 
insure  the  safety  of  his  servants.  If  he  has  omitted  to  provide 
competent  fellow-servants,  or  safe  and  elllcient  machinery,  or  if  Ids 
own  personal  negligence,  or  that  of  one  who  may  be  regarded  as  a 
deputy-master,  or  as  a  servant  of  the  same  master  but  eniiaged  in  a 
different  employment,  h;is  conduced  to  the  aec-ideiit  :  in  sueli  case-; 
lie  is  not  exempt  from  liability.  Even,  however,  in  eases  where 
the  machinery  provided  by  the  master  was  not  safe  and  t'llici<'iit, 
the  master  is  not  liable  if  the  servant  was  e(|iially  well  awa.'e  how 
defective  it  was,  and  in  spite  of  that  knowledge  went  on  working 
with  it.     Shirley's  Ld.  Cas.  lOG. 


]Tr 


M 


I 


NEGLIGENCE. 


233 


CONTRIliUTOU  Y  NEGLIGENCE. 


BUTTE KFTET.n  v.  FORRESTER. 


[11  Kast,  f.O;  •>  Thomp.  Lil.  Ciis.  Neg.  1104.] 


Mr.  Forrester  was  u  citizen  of  the   town  of  Derby, 
and  at  the  time  to  which  our  stoiy  rehites  was  engaged 
ill  the  hiudahle  enterprise  of  enhirging  and  improving 
liis  house.     This   was   \\\\  very    well  ;  hut  in  carrying 
out  his  repsiirs  he   was  guilty  of  the   high-handed  and 
nnw;irrantal»le   act  of  putting  poles  across   the  king's 
liighway.     Just  about  dusk  oni;  August  evening,  while 
the  things  were  in  this  improper  .state,  Mr.  Butterfield 
was  ridiiiic  home.      With  reckless  disregard  for  his  own 
and  the  liege's  safetv,  lie   went   galloping  through   the 
streets    "as  fast    as   his  horse  could    go;"    and    the 
reader  will  scarcely  he  surjjrised  to   hear  that  ho  rode 
])lump    up  :'gainst  Mr.  Forrestiu-'s  obstruction,    and, 
that  a  moment   later,  as  the  poet   says  (though,  if  we 
ri'incmber   light,   not   exclusively  in  reference  to  Mr. 
Butterlii'ld  ).  "  there  lay  the;  rider  distorted  and  pale." 
Conceiviiiij:  with  a  yreat   deal  of  sense,  that  the  most 
ellectual   wav   of   resloriuu;  his  health    would  be  bv    a 
verdict  and  damages,  he  l)r()Ught  this  action  ;  but  his 
own  careless  riding  was  held  to  be  as  c()m[)lete  an  ob- 
stacle to  his  success  as  Mr.  Forrester's  pole  iiad  been 
to  his  horse.      "A  i)arty,"'  said  Lord   Ellknhouougii, 
C.  .1.,    "  is  not    to    cast  himself  ui)on  an    obstruction 
which  has  bcH'ii  made  by  the  fault  of  another,  and  avail 
himself  of  it,  if  he  do  not  himself  use  eoinmon  and  oi- 


V 


i 


1     :i 


234 


LEADING    CASKS    SIMPLIFIED. 


dinary  caution  to  be  in  the  riulit.  *  ♦  *  Qne  per- 
son boini;  in  fault  will  not  dispense  with  tinotliev's 
using  ordinary  care  for  himself." 


« 


Hy 


HZ 


I*- 


1;'^ 


DAVIES   V.  3IAN]S^. 

[10  Mce.  &  W.  .H5;  2  Thomp.  Ld.  ('as.  Nf.u'.  1105.] 

'*  The  plaintiff  having  fettered  the  forefeet  of  an  ass 
belon<rin«>:  to  liiui,  turned  it  into  a  i)ubli('  hiirhwav,  and 
at  the  time  in  (piestion,  the  ass  was  grazing  on  the  olf 
side  of  a  road  about  eight  yai'ds  wide  when  the  de- 
fen(hint's  wagon  with  a  team  of  horses  came  along." 
The  waiTon  was  jjoinu'  a  <j:reat  deal  too  t";ist,  and  was 
not  being  pro[)erly  looked  after  by  its  driver,  and  the 
conse(]uenco  was  that  it  caught  the  poor  ))east,  which 
could  n()t  get  out  of  the  way,  and  hurled  it  into  that 
bourne  whence  returneth  neitlun-  man  nor  donkey. 
The  owner  of  the  donkey  now  brought  an  action 
against  the  owner  of  the  wagon,  an<l,  in  spite  of  his 
own  stupidity,  was  allowc'd  to  recover,  on  the  ground 
that  if  the  driver  of  the  wagon  had  been  decently  care- 
ful the  consequences  of  the  plaintitf's  negligence 
would  have  been  averted.  "Although,"  said  Paiike, 
B.,  "  the  ass  ma}^  have  b^^en  wrongfully  there,  still 
the  defendant  was  bound  to  *xo  along  the  road  at  such 
a  pace  as  would  be  likely  to  prevent  mischief.  Were 
this  not  so,  !i  man  miLdit  justifvthe  drivinijr  over  ijoods 
left  on  a  public  hi<;hwav,  or  even  over  a  man   lyinjj: 


NEGLIGENCE. 


2'db 


ivslccp  there,  or  the  purposely  running  iigainst  ii  car- 
liaij,!'  going  oil  the  wrong  side  ot'tlio  roud." 

The  doctrine  of  contributory  negligence  is  based  on 
the  common-sense  nvA^'nw^  volenti  non  Jit  injuria, — 
i.e.,  the  man  who  is  the  author  of  his  own  hurt  has  no 
right  to  complain  of  it;  his  own  folly  disentitles  him 
to  anybody's  sympathy  or  money.  But  Davies  v. 
Mann  lays  down  a  very  sensible  qualification  to  this 
ruhs  viz.  :  If  the  defendant  by  being  ordinarily  careful 
would  have  averted  the  consequences  of  the  plaintiff's 
nc'dijitnce, — in  other  words,  if  the  regrettable  acci- 
dent  wouhl  never  have  ha[)pened  if  tlio  defendant  had 
l)ehaved  as  he  ought  to  have  done,  — then  the  plaintiff 
is  entitled  to  recover  in  spite  of  his  negligence. 


IMPUTED  NEGLIGENCE. 


BEXXETT  V.  XEW  JERSEY  KAILROAD. 


[3(5  N.  J.  (L.)  1'--'.");  Tliomp.  Ld.  Cas.  Ciirr.  Pass.  2«1.] 


Just  where  a  street-car  track  and  a  railroad 
track  crossed  each  otlior  in  Jersey  City  there  was  a 
smasli-up  one  day,  a  locomotive  of  the  New  Jersey 
Railroad  running  into  a  street-car  which  was  attenipt- 
inij  to  cross  over.     It  was  not  denied   that   both  the 


■o 


euffinecr  of  the  locomotive  and  the  driver  of  the  horse- 


Ij 


i)i 


H: 


II 


23(5 


FJOAOIXCr    CASKS    SniI'I.I  I  IKD . 


car  wt '.'o  <i;uiltv  of  lu'iiliiic'iic'c.     Mr,  Uciinctt,  who  avjis 
sitliiiii"  ill  tlio  liitlor  voliicN!  mL  tlu3  liinc,  and  who  was  ;i 
good  deal   hurt,  sued  tho  railroad   ('()iui)any,  and  ihc 
jury  cjavo   hiiu    $'),()()()    damages,      Tho   conii)any  ap- 
pealed to  the  iStipreine  (\)urt  on  the  <;round   that,  Mr. 
Bennett   had  been  guilty  of  contrihiitory  negligence 
"Where  is  the  eontrihutory  negligence?"   the  court 
inquired.     "  1  will  show  you,"  said  the  railroad  lawyer ; 
"the  driver  of  the   horse-car   was   negligent,    and  :is 
Bennett  was  a  passenger  tlicrcon,  he  is  so  '  identiticil' 
with  the  tlriver  as  to   he   responsible  for  his  acts.      In 
the  case  of  T/toror/oiKl  v.  l^ri/an,^  tlu;  English  court 
of  Common     Picas    so    decided    in    tlu?    year    l.S4i)." 
But   the  New  Jersey  couil    very   i)ro[)erly  rel'used  to 
follow  the    English  ruling,  and  the  railroad   was  coni- 
pe'led  to  pay.      "  I    have  entirely  faih'd  to  conceive," 
said  liKASLKV,  ('.  ,1.,  "  how  it  is  that  the  passenger  in  a 
public  conveyance  Itecomes  identitied  in  any  legal  sense 
with  the  driver  of  such  conveyauee.      Such  i(lcntili<'a- 
tion  eould  result  oidv  in  on(5  war — that  is,  bv  eonsider- 


'  111  Tliorof^ood  r.  Hrvuii,  s  C  I{.  Ill;  (Tlionii).  I.d.  Cii^.  f'iiir. 
P.1SS.  L'7;ij,  tli(-'  action  was  l)y  the  wifi  of  Tlioro-jcood,  who  had  lu'cii 
killed  under  I  Ik;  follow]  n-j;  circnnisianccs :  l\v  was  a  iiassenirer  in 
an  omnibus,  in  alii,'liting  from  wliieli  Ik;  was  run  over  by  an  onnu- 
bus  of  auollier  line  bcloniriuL!;  to  the  defi'iidanl.  The  injury  was 
the  re-ult  of  the  coiieurn  lit  iieirliuence  of  both  drivers,  ami  it  was 
held  that  this  beiii;;  so  the  widow  could  reco\ cr  nolhinii.  This  ciisc 
has  been  iiineh  eritioised  bolli  by  laler  ICn^rlisli  jndiies  and  text 
writ<'r<.  TIk'  American  courts  decline  to  follow  it — oxcei)t  in 
Pennsylvania.  Here  is,  perhaps,  tlie  [ilace  to  warn  the  student,  so 
far  as  the  law  of  carriers  is  concerned,  not  to  pay  ninch  heed  to  the 
decisions  of  the  Supreme  Court  of  I'eiinsylvania,  at  least  durinii  the 
past  ten  or  (Ifteeii  years.  Tiie  renn<ylvania  IJailroad  ajipears  to 
"run"  that  tribunal  with  the  same  .success  tliat  it  does  its  own 
trains. 


pi 


111.' 


NEOLIGKNCK. 


237 


ill'' such  driver  tlio  8crviuit  of  the  passenger.  *  «  « 
The  passciiufer  lias  no  control  over  the  driver  or  agent 
ill  charge  ot'tlie  vehicle,  and  it  is  the  right  to  control 
the  ULrent  which  is  the  t'oundation  of  the  doctrine  that 
the  master  is  to  Ik;  allected  hy  the  acts  of  his  servant. 
To  liold  that  the  conductor  of  a  street-car  or  of  a  rail- 
road train  is  tin;  agent  of  the  nnmerons  iiassengers 
who  may  chance  to  be  in  it,  would  be  a  pure  fiction." 


CONTRIBUrOIiV  XEGTJGEXCE    OF    CHILDREN. 


LYNCH  V.  XURDIX. 


[1  Q.  B.  2(1;  2  Thomp.  Ltl.  Cas.  Neg.  lUO.] 

Mr.  Nurd  in  was  an  egg  merchant,  and  used  to  send 
his  servant  Avilh  a  cart  to  deliver  v^jr^x.'^  to  his  eus- 
tonicrs.  One  day,  when  the  man  was  out  with  the 
cart  as  usual,  he  imprudently  left  it  for  half  an  hour 
or  so  standing  by  itsolf  in  tin;  street,  drawn  U[)  by  the 
side  of  the  pavement.  While  lie  was  away,  sonii*  little 
children  began  playing  aliout  the  cart,  climbing  into  it 
and  having  all  kinds  of  games.  Amongst  them  was  a 
little  boy,  who  may  be  said  to  be  the  hero  of  this  thrill- 
iug  narrative,  aLfcd  six  vcars.  He  was  in  the  act  of 
climbing  the  step  with  a  vie\v  to  securing  a  box-seat, 
when  another  mischievous  little  beggar  pulled  at  the 
horse's  bridle.     The  old  horse,  obeving    its    natural 


FT 


I 


238 


LEAOINCr    CASKS    SIMI'LIKIKD. 


i^t  ', 


HZ 


master,  nwm,  moved  on,  and  the  little  Lynch  was 
thrown  to  the  irround,  and  the  wheel  M'ent  over  hini. 
The  child  now  bronirht  an  action  for  (lama2:es  ajrainst 
the  cuiT  merchant,  and  becanso  he  2vas  a  child  ho  was 
successful.  lie  had  done  wrong  ;  he  had  no  right  to 
get  on  the  cart,  and  if  he  had  abstained  from  doing  so 
he  would  not  have  l)een  injured.  But  the  care  whiih 
would  have  been  exi)ected  of  a  man  was  not  to  be 
asked  of  so  yoinig  a  child.  "  The  (juestion  remains," 
said  Chief  Justice  Di:\max,  "  can  the  plaintilF  consist- 
ently with  the  authorities  maintain  his  action,  having 
been  at  least  ecjually  in  fault?  The  answer  is  that 
supposing  that  fact  ascertained  l)y  the  jury,  l)ut  to 
this  extent,  that  he  merely  indulged  the  natural  in- 
stinct of  a  child  in  amusing  himself  with  the  empty 
cart  and  deserted  horse,  then  we  think  that  the  de- 
fendant cannot  be  permitteil  to  avail  himself  of  tiiat 
fact.  The  most  ))lamable  carelessness  of  his  servant 
having  tem[)ted  tlH>  child,  he  ought  not  to  re[)roa('h 
the  child  with  yielding  to  that  temptation.  He  has 
been  the  real  and  only  cause  of  the  mischief.  He  has 
been  deticient  in  ordinarv  care  ;  the  child  actiiiij  with- 
out  piudence  or  thought  has,  however,  shown  these 
qualities  in  as  great  a  degree  as  he  could  be  expected 
to  possess  them.  His  misconduct  l)ears  no  proportion 
to  that  of  the  defendant  which  produced  it." 


NEGLIOKNCE. 


239 


CONTRIBUTORY  NEGLKiENCE  OF  PARENT. 


HARTFIKI.I)   V.  KOPER. 

[21  Wend.  (iir>;  L'  Tliomi).  Ltl.  ("as.  Neg.  1121.] 

One  (lay  in  tlui  winter  of  1 «;}(!,  a  cliikl  only  two 
A'CiU's  old  was  j)l!iyiiii^-  in  the  l)caten  track  of  a  pnblic 
hiirhway,  aioiio  and  nnattondcd.  A  f^leiizli,  williont 
bells,  tlrivcn  i)y  Mr.  Kopcr,  canu^  along  ovor  this  road, 
at  a  luoderato  si^'cd,  and  the  driver  snceeeded  in  rnn- 
iiiniT  over  the  child  Ix'f'oro  he  discovcn-d  his  i)rosence. 
For  the  injuries  thus*  snstained,  the  child  brought  au 
action  against  the  persons  in  liie  sleigh.  He  did  not, 
however,  succeed.  Though  a  child  ot"  such  tender 
years  was  incapable  ot"  using  that  oi'dinary  care  which 
is  required  of  an  adult,  and  though  Iris  contributory 
negligen«-e  could  not  all'ect  him,  it  was  ncverthcles.s 
held  that  the  want  of  such  care  on  the  part  of  liis 
parents  Avas  a  sulHcient  answer  to  the  action.  For  a 
parent  or  guardian  to  idlow  a  child  only  two  yeai's  of 
ago  to  wander  and  play  nnattendcMl  on  a  public  road 
wa.s  clearly  lu'gligence,  and  this  negligence  furnished 
a  complete  defence  to  an  action  by  the  child  for  the 
iniurv  sustained.' 


'  "  TIk'  rule  wliioh  imputes  tlio  iicjiligoiice  of  parents  to  chil- 
dren," says  Jnd'io  Thompson,  in  liis  work  on  "  Neijligence," 
"has  received  tlie  support  of  suhseiiueiit  decisions  in  New  Yorl<, 
and  of  tlie  courts  of  last  resort  in  Massaeiiusetts,  Maine,  Mary- 
land, Indiana,  Illinois,  (California  and  Nebraska.  On  the  contrary 
it  is  denied  in  rennsylvania,  Vermont,  Connecticut,  Ohio,  Viriiinia, 
Missouri  and  Alabama  that  the  failure  of  the  parent  to  exercise 
proi)er  care  over  the  child,  such  that  it  shall  be  restrauied  within 
safe  limits,  can  affect  tlie  child's  ri,i;ht  of  action  for  Injuries  sus- 
tained through  the  negligence  of  third  persons." 


240 


' 

1 1    ■     • 

1  ?i  n 

V     'Mi    ?* 

■  'f 


LliAUIXO    CASES   SIMi'LIFIEL). 


PROXIMATE  AXD   RKMOTE  CAUSE. 


8COTT  V.  SlIEPIIERl). 

[2  W.  Black.  Wili;   1  Sinilli's  Lii.  Cus.  u-t!).] 

Prohiibly  no  case  cxee[)t  Coygs  v.  Bcniavd  is  better 
known  to  the  l.-nvvcr  th:in  tlio  oololji-utcd  ♦'  S(juil> 
Case."  It  ciinnot  bo  .said,  liowovcr,  that  its  importiUU'e 
is  equal  to  its  popularity.  In  days  jjono  by  it  served 
to  illustrate  the  distinc^tion  between  the  aetioii  of  tres- 
pass and  the  action  on  the  ease  ;  but  it  is  now  only 
worth  renieniberiiiir  as  an  authority  on  the  question  of 
consequential  daniaixe.  The  faets  arts  well  related  by 
the  Apprentice  of  Lincoln's  Inn  :  — ^ 


"  Facts  o'  case  first.     At  Milbounie  Port 
Was  fair  day,  Octobfr  tin-  twenty  and  cijiht, 
Aud  folk  ill  the  market  like  fowls  in  a  crate; 
Shepherd,  one  of  your  town-fool  sort. 
(From  Solomon's  time  lliey  call  it  sport, 
Illslit  to  help  holiday,  just  make  fun  louder), 
Lights  me  a  sfpiib  up  of  paper  and  i)owder 
(Find  if  you  can  the  law-Latin  for't). 

»     And  chucks  it,  to  jiive  their  tradin;i:  a  rouse, 
Full  i'  the  midst  o'  the  market-house. 
It  happened  to  fall  on  a  stall  where  Yates 
Sold  friiiLier-bread  and  {gilded  cates. 
(Small  dama^ie  if  tlfj  shoidd  i)urn  or  lly  all)  ; 
To  save  himself  and  said  fiiniier-bread  loss. 
One  Willis  doth  toss  the  thinyt  across 
To  stall  of  one  Ilyal,  who  straijiht  on  espial. 


'  Leading  Cases  Done  into  English.     By  An  Apprentice  of   Liu- 
coin's  Inn.     London,  187(i. 


NIUJLIUENCE.  24.1 

Of  (liini?»'r  to  his-  wares,  of  solf-sainc  worth, 
Casts  it  ill  iiiarl\ft-li()iis('  fartliiT  fortli. 
And  by  two  mcsno  tossliisjs  thus  It  got 
To  i)iirHt  i'  till'  face  of  plaintiff  Scott. 
Ami  now  ';;aiiist  SlicplK'nl  for  loss  of  eye, 
QiiL'stion  is,  wlu-tliiT  trespass  shall  lio." 

Slieplu'i'd  ()l)j(K!to(l  that  ho  Wiis  not  rcsponsihU>  for 
wliiit  had  happened  when  th(^  sipiil)  hail  passed 
ihronirh  so  iiiaiiy  hands ;  hut  thoiiuh  ho  [)ofsiiaded 
tho  leiirncil  Mr.  fliistico  Bf^ackstonk  to  aujreo  witli  him, 
tho  majority  of  tho  court  decided  that  ho  must  be 
jyrcsuDied  to  Intre  contemplated  all  the  consequences  of 
his  wrong/id  act  and  was  answerablo  lor  them. 


I 


FENT  V.  T0I.E1>0,  ETC.,  K.  CO. 

[.->;»  111.  ;U!t;   1  Thomp.  Ld.  Cas.  Neg.  13(5.] 

A  warelioiise  and  huiiber  yard  wore  near  the  track 
of  tho  'roU'(h>  and  Peoria  Railroad  Company,  at  Fair- 
Held,  III.,  a  very  jjfood  situation  lor  some  reasons,  and 
a  bad  one  for  others.  One;  day  in  October,  l<S(i7,  a 
locomotives  came  alon<:",  ludchiniji:  out  great  clouds  of 
thick  smoke  and  liviM'inders.  There  had  boon  no  rain 
in  tho  neighborhood  for  some  weeks,  and  so,  when 
some  of  the  coals  fell  on  tho  lumber  there  was  a  big 
blaze,  which  was  not  extinguished  until  it  had  do- 
vom-od  not  only  tho  warehouse;  and  luml)er  yard,  but 
likewise  Mr.  Font's  house,  which  was  located  two 
liundred  feet  from  the  warehouse,  from  which  the  Hre 

16 


imi'  H 


!i  '  '  •  I     ' 
• »  ■ 


IIW 


<.i> 


242 


LKA1)IN(J    (ASKS    SI.MI'MIIICU. 


3 


sproiul.  The  niilroiid  compiiiiy  could  not  deny  their 
n(\ii:liL''<'iu'e,  iind  e()iise(|iieMlly  Wiv'w  liability,  tor  burii- 
iiij^"  the  warehouse  and  hiniber  yard,  Init  they  tirndy 
refused  to  pav  anv  daiuai:;o  lor  Mr.  Fent's  house. 
When  III'  hrouuht  an  aetion  against  them,  they  arjijueil 
that,  as  the  house  was  set  on  lire,  not  hy  s[)arks  from 
tlio  loeoniotive,  hut  iVoiu  s[)ai'Us  from  the  burning- 
warehouse,  they  wer(!  not  liable,  hecauso-.they  were 
only  the  remoti!  and  not  tho  proximate  eaus((  of  the 
loss.  And  what,  they  asked,  will  become  of  Us  poor 
railroatls  if,  by  a  spark  from  a  locotiiotix'e,  a  house  near 
tli(!  ti'aek  catches  on  llri;,  which  s|)reads  and  burns 
down  Ji  whole  town,  and  wo  ai'(!  made  to  i)ay  for 
the  whole  damajic  Hut,  notwithstanding  this  touch- 
ing  appeal,  the  coui't  decidecl  against  the  company. 
"  If  loss  i»as  been  caused  by  the?  act,"  said  Lawuknck, 
C  tl.,  '*  and  it  was,  under  the  circuinstances,  a  natural 
consecpieni'i!  which  any  reasonaI)le  person  could  have 
anticipated,  then  tlu^  act  is  a  proximate  cause  whether 
the  iiouso  burned  was  the  lirsl ortln^  tenth  —  the  latter 
l)eiug  so  situated  that  its  destruction  is  a  conseciucnce 
reasonably  to  be  anticipated  from  settiui;  the  first  on 
fire."  As  to  the  second  point ,  tlu;  court  was  unable 
to  see  the  force;  of  an  arguin(>nt  which  proceeded  U[)on 
the  assumption  that  it  was  l)etter  to  distril)ule  a  great 
loss  among  a  hundred  imioceut  victims  tlian  to  visit  it 
all  on  the  wroui^-doer. 


JIISCKLLANKOL  .S    TOUTS . 


243 


Xy.  MlS("KLLANK(  >rs     ToRTS.' 


NUJ>iAy(E^. 


HT,  iiEi^i']X's  s:ni':i/ri\<i  co.  v.  tippixg. 


[11    II.  L.  Cas.  (:»:.';    Hi;i.  I-d.  Ciis.  Torts,  ■[:>[.] 

Mr.  'rii)()iiiLr,  of  Liuic-isliiro,  iiiiuiircstcd  his  ohjoc- 
tioiis  to  siiioko  ill  a  vcrv  practiciil  way.  IlaviiiiT  pui'- 
chased  a  housti  an«l  grouixls  .situated  within  a  short 
(h>laiiee  of  tlio  woi'ks  of  a  copper  .siiielting  c()mi)aiiy, 
he  found  very  soou  that  to  live  ir.  that,  re<j^iou  was 
suuply  out  of  the  (piestiou.  From  the  tall  chiuiueys 
of  the  works  smoke  and  no.xious  va[)()rs  issued  uiirht 
and  day  ;  it  injui'ed  his  trees  and  shrul)l)ei'y  ;  made  his 
("ittle  sick,  and  rendered  his  own  e.\istence  intohu'able. 
.Mr.  Tippinir  therefore^  resoi-ted  to  an  action  for 
damaires.  The  company  pi'oved  that  the  whole  neigh- 
borhood was  stud<led  with  manufactories  and  tall 
chimnevs  ;  that  there  were  some  alkali  works  clo.so  to 
their  own,  whose  smoke  wa.s  cpiite  as  injurious  as  theirs, 
and  that  the  smoke  of  both  sometimes  united,  making 
it  impossible  to  .say  to  which  of  the  two  any  |)articular 
injury  was  attributable.     Thev  also  relied  on  the  fact 


'  A  tort  is  an  injury  wliicli  involves  no  broacli  of  contract. 


i 


: ) 


'i' 


f' 


244 


rj:AI)IN(J    CASKS    SIMI'MI'IKD. 


thiit  their  work><  liiul  cxisicd  boforo  the  (lot(Mi(l,iiit 
boiiirlit  his  ])r()[)('rly,  Xcvcrthch'ss,  Mr.  Tippiii;;  n- 
0()\('ri'(l  £.'{(!!  (l.imaiics,  iuid  aUh()m;li  tho  ronipniiv 
C'iirricd  the  ('ms(»  all  the  way  to  the  House  of  Lords,  ;i|j 
th(!  judires  thouiiiit  him   entitled  to  the  verdict. 

"  In  inattersot"lliisdcseripti(ni,"  saiil  Loi'dCMiaiu'ollor 
Wkstiuky,  "  it  appears  to  me  that  it  is  n  veiy  desirable 
thini.':  to  mark  the  d'/leretieo  lu'tween  an  aetion  bronjilit 
for  a  iujis;mee  upon  tlui  jrronnd  that  the  alle^red  niii- 
sauce  proihu'cs  nialerial  injury  to  tlu?  propei'ty,  and  an 
aclion  brouirht  f'oi'  a  nuisanco  on  the  iiround  that  the 
thing  allegcil  to  l»e  a  nuisance  is  productive  of  se:«>;il)lc 
personal  discomrorl.  With  regard  to  the  latter, 
namely,  the  [x'rsonal  inconvenience  and  interf'ei'cnce 
with  one's  enjoyment,  one's  (|uiel,  one's  [)erson:d 
lVe(!dom,  ar.ylhing  that  discfrmposes  oi*  injuriously 
allects  the  sens(>s  or  the  neives,  whether  that  may  or 
may  not  be  denominated  u  nuisance,  must  undoubtedly 
depend  greatly  on  the  eii'cumstanci's  of  the  place 
where  the  thing  complained  of  actuaily  occurs.  If  a 
man  lives  in  a  lo'.n,  it  is  necessary  that  he  should  siib- 
j(>ct  himself  to  the  consecpiences  of  tho>^e  opei'ation^ 
of  trade  which  may  b(^  cariiecl  on  in  his  inuneiliatc 
loca.iity,  which  ai-e  actually  necessary  for  trade  and 
cc'/UHnerce,  and  also  for  the  (  njoyment  of  properly, 
•ind  foi'  the  benelit  of  the  inhabitants  of  tln^  town  and 
of  i  he  public  at  large.  If  a  man  livi>s  in  ii  street 
wiicre  'her(^  are  nmnerons  shops,  and  a  shop  is  opeiic(| 
next  door  to  him,whi(h  is  carried  on  in  a  fair  and 
reasonable  way,  he  has  no  ground  f(M"  com|'laint,  be- 
cause to  himself  individually  there  may  arise  much 
discomfort  from  the  irad(>  carriecl  on  in  that  shop. 
But  when  an  occupation  is  cari-ied  on  by  one  person  in 


J 


1J 


MISCELLANEOUS    TOUTS. 


245 


the  noigliborhood  of  iuiothcr,  and  tlio  result  of  tli;it 
tratle,  or  oecup:itioii,  or  husiiiess,  Is  a  material  injury  to 
property,  then  there  uuipiestionaMy  arises  a  veiy  dil- 
icrent  consideration.  I  think,  i  )y  lords,  that  in  a  ease 
of  that  descri^jtion,  the  submission  which  is  recpMred 
from  j)ersons  living  in  society  to  that  amoinit  of  dis- 
comfort which  may  be  neeesstiry  for  tlu!  K-gitimate  and 
fret;  exercise  of  tlu;  traiU;  of  their  ncighboi's  would  not 
apply  to  the  ciri-nnistances,  the  immediate  result  of 
which  is  sensible  injury  to  tlu  vulm^  of  llu!  property. 
And  the  judges  hidd,  also,  that  th(>  fact  that  tlie  local- 
ity A\hcre  the;  olleusive  trade  was  carric(l  on  was  oio 
generally  em[)loyed  for  tlu^  purpose;  of  that  and  >imilar 
trades,  would  not  exempt  the  com[)auy  from  liability 
to  an  action  for  damages  in  respect  of.  injury  created 
bv  it  to  propertv  in  the  neii^hborliood. 

11..  .,  v_ 


FALSI']  lii'jriiijsKxrA  rmys. 


i»Asi.i:v  V.  I  Ki:i:>iAX. 


[;i  Term  Ut'it.  .")1  :  i'  Siiiitli's  Ld    ('as.  157.] 

Paslev  was  a  i)er>on  who  dealt  in  that  curious  ex- 
poi't  of  Mexico,  cochin(>al,  ami  wantt'd  a  [lurchaser  for 
!i  (piantity  lu^  had  on  hand.  Ilappeniugto  maki-  known 
his  want  to   Freeman,  that   worthy  instantly  said   he 


r  ~ 


;:■)   :; 


24(5 


LKA1)IN(}    (ASKS    SI.MPLIFIF:1). 


knew  somebody  who  would  buy  the  cochineiil  —  a  Mi\ 
Faleli.  "  Is  he  a  resi)eet:ible  and  siibsianli.il  person?" 
asked  PmsK'v.  "  Certainly  he  is,"  answered  Freeman, 
well  knowinuthat  lio  wasnothin*;  of  the  soi't.  On  tli' 
laith  of  this  re[)resentation,  Pasley  let  Faleh  h:i\  -i 
teen  baj^s  of  eoi'hineal,  of  th(^  value  of  nearly  X.'l.ooo. 
on  credit.  Tt  then  turned  out  that  Fah-h  was  a  man  of 
straw,  ami  as  Pa^^U'v  had  not  thi^  remotest  prospect  of 
gettinu:;  the  .''.  >,()0n  iVom  him,  lu;  sikmI  Fi-eeman  for 
"  telling  !i  iie,*'  and  got  his  money  that  way. 

The  fourth  section  of  the  Statute  of  Frauds,  enacts, 
amongst  other  things,  that  a  i)romise  to  answer  for  the 
debt,  default,  or  miscarriage  of  one  of  your  friends, 
must  be  in  writing,  or  it  shall  not  bind  you.  Why, 
then,  was  Freeman  lu'hl  liable?  The  a.iswer  is  that, 
whereas  tin;  section  refers  exchisively  to  cnntracf^,  Pas- 
Ic}'' sued  Freeman  in  (ovf -,  and  tho  principle  allirnn^d 
in  tho  case  is,  that  "  wlierevi'r  deceit  or  falsehood  is 
practiced  to  tlu;  detriment  of  another  the  law  will  give 
redress."  And  it  is  no  defence  to  an  action  of  this 
kind  that  the  defendant  had  no  intei'cst  in  and  was  to 
j;ain  nothing  from  telling  the  lie. 

The  Ap[)rentiee  ot'  Lincohi's  Inn  thus  renders  this 
memoralde  (U'cision  :  — 

It  was  Piislcv  t'aitK!  with  !iis  fdaw 

tt»  Loiitloii  town  with  wart's  io  sell, 
sixteen  buiis  of  tin;  lliu;  eo(!hineal, 

for  buyers  wlio  should  like  t',iem  well. 

Stood  up  a  l)U.ver  and  spokti  so  fair; 
Jolni  (;hristo|)li(!r  Falcii  lie  liad  to  name: 
"  liiiilit  well  ine  liketh  tlie  eoeliiiu-ai  line, 
uud  I  will  freely  buy  the  saine." 


MliSCKLLANEOL'S    TOUTS. 


247 


"  If  ye  !);•  fain  to  l)iiy  our  wares, 

we  must  >,ol,  one  lliiiiLT  or  I'li'  we  sell  ; 
yo  sliall  ilo  us  to  wit  if  yo  be  of  worth, 
a  man  to  trust  ami  credit  well. 

"  For  but  and  the  silver  ami  jrold  were  paid, 
this  (lay  were  a  day  to  rue  full  sore  : 
two  tliousand  poiiud  is  not  the  wortli, 
nor  if  ye  tell  six  iiiiudred  more." 

Joseph  Freeman  stood  up  and  spake: 
"  I  rede  you  let  tlie  wares  be  sold, 
John  ("hristopher  is  a  man  of  trust 
for  the  white  silver  and  eke  red  icold." 

They  have  i;i\en  their  wares  to  John  (-hristopher, 

and  set  him  a  day  to  |)ay  in  han<l  ; 
John  Christopher's  lied  o'er  tlie  wan  water 

and  left  no  jroods  within  tlie  land. 

Pasley  is  wo\en  as  a  man  wood, 

to  sit  still  liini  seemed  uolhiim  meet; 

said,  We'll  up  and  sue  tins  falsr  Freeman, 
t  )  do  u-  riLtht  for  his  deceit. 

There  was  (irose  the  one  justice, 

said  this  was  but  a  lewed  thinii, 
for  wliere  .\e  I. ml  no  word  of  promise, 

no  action  I'eth  for  l)are  h^sin;;. 

liuller,  was  th'  other  justice, 
said,  Hero  is  a  ilaina;ie  and  deceit; 

wiiere  by  word  of  man  lie  coiuen  tlioe  twain, 
the  third  is,  to  rcpiite  ins  cheat. 

Ashliurst  w.is  the  tlur,i  justice, 

said,  Thouijh  Iv  .^ain  not  by  tlie  lie, 

liis  ma!,i  e  is  yet  more  curst  of  kind 
than  if  he  had  lioiie  to  win  thereby. 

I.ord  Ivi'.NYi>\  was  the  chief  justice, 

.^•Md,  Full  little  is  l.'ft  to  tell; 
but  the  fraud  was  plain  a-ul  eke  the  loss, 

and  I  hold  this  action  lieth  well. 


ir 


llji!    ! 


iw 

■' ,«-. 

¥ 

i: 

g 

i;' 

1 

••«,; 

|- 

It"'' 

i^' 

*•»• 

,^.ii 

II 


248 


LKADINO    CASKS    iSIMl'I-IFIKD. 

So  Paslov  won  tli;it  oauso  as  llien; 

but  iiKTcliants  liad  tluTcof  affi'iirht, 
ami  liavc  letteii  onlaiu  in  Parliament, 

sui'h  words  sliall  have  no  harm  no  might 
to  hold  oML-  Ixvnnd  for  his  fidlow's  trust, 

but  if  thev  l)e  written  in  black  aud  white. * 


i.AX(;!{ii)<ji-:  V.  i.Evv. 

[■-'  .Mi'c.  .v  \V.  :.i;i:   I  id.  ;;:i7.J 

Mr.  LiiMo;ri(li>\'  .sciiioi",  w.ilkiiiLT  oiu;  d.iv  down  the 
streets  ofUristol,  noticecl  ;i  1:1111  in  ii  slioj)  window  with 
the  foUowiiio-  seduetivo  udvertiseniont  lied  round  its 
innzzle  :  — 

"  Warranled,  this  (deirJint  twi>t  oun  ])y  Xofk,  with 
case  e()ni[)Uite,  niaiU'  for  his  late  Majesty  Georgo  IV.  ; 
cost  (50  guineas  ;  can  he  liad  for  2')." 

He  enteriMl  tht^  shop,  which  was  the  defeiKhmt's, 
and  tohl  him  ho  wauled  a  nice,  (niiet,  steady-going  gun 
for  the  use  of  liimsi-lf  and  his  son.  Finally,  he  bought 
the  oloL'ant  twist-irnn,  as  warranted.      Now,  wi*  reoret 


'  Pasloy  r.  I'^n'oiniiu  was  substantially  if  not  iu  form  a  viohuion 
of  tlic  Statute  of  Krauds.  Viewing  it  in  tills  liglit,  Parliament 
passed  an  act  in  tlio  ninth  year  of  Ck'orge  tiie  Fourtli's  reign,  which 
provided  that  no  one  wlio  had  eulogized  anotlier's  "  eliaracter,  con- 
duct, cr(!dit,  ability,"  etc.,  in  order  to  imluce  people  to  trust  liim, 
shoi'id  1)0  lial)Ie  to  an  action  for  faNo  representation,  iiule-s  his 
eulogy  were  i:i  writiugand  siiiiied  by  him.  Tliis  is  g<'iierally  l^uowu 
as  I.,ord  Teiiderdcii's  act,  so  named  after  its  autlior,  and  it  lias 
been  coi)ied  into  tlie  statutes  of  at  least  ten  States  of  tlio  Union. 
See  Browne  on  Stat.  Fr.,  sect.  LSI, 


MISCKLLANKOUS    TOUTS . 


2  49 


to  say,  this  warninty  was  false  and  iVai'diilt'iit ,  Id  the 
(Icrondant's  Uiiowlcdg;',  and,  slioi-tly  al'icr  t!u»  purcliaso, 
OIK.  of  tlu;  voiinu^  Tj:inii"!'idp's  was  n-inii"  (lie  uuii  in  a 
[xTfcctly  fair  and  spni'lsnianlikc  nianiu-r  wIhmi  it  hurst 
and  hlow  oil"  his  hd'l  hand. 

It  was  lhi>  victim  of  Iicvy'>  dishonest  v  who  now 
hrouLdit  an  action  aLrain^^t  him,  ami  the  chii'T  point  re- 
lied on  hy  the  defendant's  counsel  was  that,  if  any 
one  had  a  I'i'iht  to  hrii'.u' :»n  action,  it  wa>:  the  father, 
to  whom  the  ii'im  had  hcen  ->old  ;  as  for  the  ^on,  they 
said,  there  was  no  privity  of  <'onlraet  hetwi'en  him  and 
llm  L''Ui\.smilh.  'IMiisdet'ence,  how(>ver,  did  not  suce(M>d, 
and  the  yo4ilhi'ul  L;mLiridir<'  j2ot  as  much  consolation 
as  money  eould  liive  him  for  the  loss  of  hi-^  hand. 

The  rea.son  of  lliis  result  was  thai  Levy  had  hcen 
iXuiltvofa  tort  iii  makin^i' a  false  re|)re>entat  ion.  If 
he  had  made  c.o  lal-e  rei)resentation  he  W(mld  have 
oid\'  l)een  lial)h>  to  the  father  for  t  he  hi'cacli  of  con- 
tiMct.  As  it  wa->,  he  was  held  liahle  to  the  son,  who 
eonli(le(|  in  tlu^  representation,  and  wh(),  he  knew,  was 
goinif  to  use  it.  Said  liai-on  I'akki:,  who  delivered  an 
e.\haustive  iud'j,inent  in  tln^  Court  of  Ivxehecpier :  "It 
tlie  instrui  lent  in  (piestioii  which  is  not  of"  itself  dan- 
gerous, l)iit  which  reciuircs  an  act  to  h(>  (h)ne  —  that  i.s, 
lo  he  loaih'd  —  in  oilier  to  makc^  it  so,  had  l)een  shn- 
j>/>/  delivere<l  l)y  the  defendant,  wiihojit  any  eontraet 
or  representation  on  his  part  to  the  plaintitl",  sio  action 
would  haveheen  maintainahle  for  any  suh-ie(|uent  dam- 
ag(!  which  the  plaintitl'  might,  have  sustained  l)y  the 
us(«  of  it.  Ihit  it  it  had  heen  delivcretl  hy  tiie  (lefend- 
;int  to  tilt!  i)laintiir,  for  tlu^  jnu'pose  of  being  so  used  Iji/ 
///III,  with  an  accompanying  re[)resentation  to  hini  that 
lie  might  s(tfrhj  so  its<'  t'f,  and  that  re[)resentation  hud 


T 


I 

4 


I'i 


II 


2;")0 


l.K.\ni\<^.    CASKS    SIMl'MFIKD. 


i)tMMi  /(//.sv  /o  ///''  (/(ft'iuhinf's  huioivlethfr,  mikI  the  plnin- 
tiH"li:iil  i.i'tcd  ll|»n|i  lli(>  f;iitll  of   its  Ix'iii;^  Irilc,  ami  li.'dl 

/ec'civi'd  (l;i!n;iL''i'  tlic:'(»I>y,  lIuMi  tluTci  is  no  (iiicslion 
but  th:it  !iii  iU'tioii  would  Irivo  lain,  u|)()ii  tlio  i)i'iiifi[)l(! 
ot'.'i  iitiincroiis  class  of  cases,  of  wliicli  tho  Icadiiii^  one 
is  that  of  PaH.]('ii  \ .  FvcciiKiti ,  which  principle  is  thai 
a  mere  naUci]  falsehood  is  not  enonuh  to  ij;ivc  a  ri^lit 
of  action;  lust  if  il  l>e  a  falsehood  told  with  an  inten- 
tion that  it  shouhl  Ixi  ai'teil  ii[)on  hjMhi!  i)arty  injuretl, 
and  thai  ai-t  nnisl  pivxhico  thunajjfc  to  him  ;  if,  instead 
of  heinii-  d  'livered  to  the  plaintiff  inimediatoly,  tin;  in- 
stnmieiil  had  heeii  placed  in  the  hands  of  a  thircl  pei- 
son,  ('),•  llf  puvpnsi'  of  licliui  (h'livi'i'cd  to  dud  tlcil  m^nl 
hij  (he  i)hi!itlitf\  the  like  false  reni-e-icnt a;  ion  hein"' 
knowingly  made  to  the  intermedia  (5  [)ers<>n,  to  l>e 
commnnicali'd  to  the  plaintilf,  and  tlu^  plaintilf  hail 
acted  upon  it ,  there  can  \n\  no  doubt  but,  that  the  prin- 
ciple would  ecpially  a[>  [)ly,and  t  he  plaint  ill' woidd  have 
had  his  i-emedy  for  tlu!  deceit  ;  nor  could  it  make  any 
ditferencci  that  the  third  person  <iI.-<o  was  intende(| 
by  tho  deiendant  to  be  deceived  ;  noi"  does  there  seem 
to  be  any  std)stanlial  distinction,  if  the  instrument  he 
dt'livt'i'cd  in  oiiler  lo  l»e  so  used  by  the  plaintilf, 
thoUL'h  it  dot's  not  apjx'ar  that  the  delendant  intended 
the  fals(>  representation  itself  to  !)e  comiu.uucale<l  to 
him.  There  is  a  false  r"presentalion  made  by  the  i\v- 
fi'iidanl,  with  a  \\v\\'  thaf  (lie  phiiiiUlJ'  s/tonii/  iis''  ///r 
iitsfrtoufuf  m  a  dani!"erous  way,  and  unless  tlu;  repre- 
sentation had  been  made,  the  dangerous  act  would 
never  liave  been  done." 


MISCKLLAN lOUUii    TOUTS . 


i'n 


lUGIITS  OF  FfXDFUS  — POSSESSION-  PRE- 

suMrriox. 


AitMoiM    V.  i>i:i..vMii{ii:. 

[1  Slru.  :)()(;  I   Siiiitli's  Ltl.  ('lis.  171.] 

X  voutlil'iil  cliimncv-swi'i'i)  \\;ts  lortuiiMto  (miouHi  to 
find  ;i  wvy  v:iIiim1)I('  jewel.  Vnil  or  I,  li;ul  we  foiiiul 
>iicli  :i  Irciisiirc,  mi^ht  li.-ivc  .•idvcrl  isrd  it  in  the  iicws- 
l);i[)('i's.  \(>l  so  our  voiii)<r  iVi,. 11,1.  \\y  his  Ii«:nt.s  Uncl- 
iiiij;-  \v;is  kccpiiin-.  Mini  he  looU  it  to  :i  Jeweller's  to  iis- 
certiiiii  its  viiliie.  'rii(>  jeweller,  taking-  Mtlvuntairo  of 
tlu!  hoy's  simplicity,  told  hiin  it  wms  a  riil)l>ishv  lliinir, 
and  oll'ered  liiin  tiiree  Iiall-peiiee  for  it,  —  a  imiiiilieeiit 
(  ll'er  which  the  lad  decliiuMl  without  thanks,  and  de- 
Hiaiidcd  liis  [)ri/e  hack. 

"  Vur  all   his  words  tlicv  -rave   hiiii  for  llie  nones 
Tilt'  sockt't  empty  ami  wiilioutca  stones, 
Ami  laiii^li  upon  liiiu  and  fiun  call  liiia  thief: 
Therefofe  fall  wisely  telleth  he  his  m-ief 
To  men  of  law,  which  answered  him  anon." 

And  wh.at  the  men  of  law  answerc(l  him  anon  was  to 
tliis  ctfect  :  '•  Vot;  have  fairly  fomid  this  jewel,  and 
nobody  c.xcopt  the  real  owner  has  a  bettor  title  to  It 
than  yotii'self ;  till  he  shall  tippear,  you  may  keej)  it 
against  all  the  world,  and  maint-tin  trover  for  it.''  ' 

'  The  tinder  of  a  ehattel  stands  in  the  shoes  of  the  real  owner 
nntil  tliat  person  t!;rns  np.  'I'herefore,  it  Smitli  should  Mud  a  watch 
on  Monday,  and  on  Tn-'sday  lose  it,  and  -tones  tind  it,  this  tiaie, 
Smith  could  n-cover  it  from  Jones,  if  the  original  owner  was  still 


fn 


252 


LKAIJINO    C;,\Si:S    HI.MI'LiriEl). 


Ilavinir  settled  this  i)()iiit,  the  JikIu'cs  mow  turned  to 
tlie  vnliie  ol"  the  Jewel.  The  jeweller  liild  refused  to  pro- 
duce the  stoue,  and  so  several  oi'thi'  trade  were  exani- 
iiied  as  to  the  value  of  a  Jinvel  of  th(^  Inicst  water  that 
woidd  lit  th(!  euiptN'  socket,  and  it  was  held  thateverv- 
thinii-  would  \)e  presumed  airaiusL  the  jeweller,  and 
that  the  chininev-swee[)  should  have  the  value  of  the 
very  hest  jewel  ol'  the  si/e  taken,  on  the  [)rinci[)h!  of 
the  maxim  (iiiinia  jincsuniuiifur  {ipolUitort'in  —  every 
presunii)tion  is  madi;  to  the  disadvantage  of  the  wrong- 
doer. 


'' ixjfin'"  wiTiiorr  damage. 


ASiiiJV   V.    WIIITl!:. 

[Ltl.  Kiiyiii. '.cis;    1    Smith's  L.l.  Cus.  :UL'.] 

Ashhy  l)r()Ug!it  an  action  ai^aiust  th<'  olHceivs  of  an 
clei'tion  foi'  refusinu'  to  receive  his  vote.  'V\n\  candi- 
dates for  whom  h(!  intended  to  voh;  were  elected  ;  l»ut 
in   spite   of   this,    and   althouuh    he    had   sustained    no 


unknown.  But  thi'  cliirf  |)oint  on  wliicli  the  wrll-known  c.-isc  of 
Armory  v.  Dclaniiric  is  an  antliority,  is  as  to  wliat  is  suilicicnt  toon- 
able  a  person  to  maintain  an  action  of  trover.  It  is  not  merely  lIic 
person  in  wiiom  resides  the  riijlit  ui  propcrtij  whocan  maintain  sncii 
an  action.  The  chimney-sweep  had  not  that  riirht.  It  was  all 
alonir  in  the  person  who  had  lost  tlie  jewel.  .VII  the  ehiinney- 
.swct'p  had  was  the  rii;ht  of  jhjssessioii,  l)ut  it  was  considered  that 


J 


MISCELLAXKorS    TOI!TS. 


2r)» 


IV  tunu'tl  to 
"used  to  pro- 
wore  cx:un- 
t  wiitor  tliut 
I  that  cvcrv- 
•wcIUm',  ami 
s'aliic  of  t  lit' 
l)i'infil)li!  of 
''>'in  —  cvciy 
f  the  wroiig- 


(iE. 


act  Hill  <laiuag(',  It  was  licld  linally  that  such  an  ad  ion 
could  l>o  maiiitaiiuMl.  Chief  dustico  Holt  in  this  case 
covered  himself  with  irlorv  as  with  a  cloak.  He  was 
unanimously  overruled  in  his  own  court.  •*  My 
i)i-()thers,"  said  he,  "  dilfer  from  me  in  o[)inion,  and 
tiiey  all  (lill'i'r  fi'om  one  another  in  the;  reasons  of  their 
opinion,  hut  notwithstandinir  their  opinion,  I  think  the 
plaintiir  ouirht  to  recovei-.  *  *  ♦  |  y^\\\  ,|,,  ili,.so 
two  thinu's.  Fir>l,  I  will  mainttiin  that  the  plaint  ill'  has 
a  riirht  and  nrivileire  to  irive  his  vote,     Secondlv,  in 

oil*  •■ 

consecpience  thei'eot",  that  if  he  was  hindered  in  the 
enjovment  or  exercise  of  that  riirht,  the  lawuives  him 
an  action  airainst  the  distuj'her  and  that  this  is  the 
proper  action  <^\\vu  l»y  the  law."  The  Chief  Justice 
maintained  these  two  propositions  so  well,  that  when 
the  case  went  to  the  House  of  Lords,  the  majority 
o[»inion  in  his  own  court  was  overrule(l,  and  Ashhy 
was  trium[)hant. 


olHi'crs  of  an 

The   candi- 

el(M'led  :    hut 

sustained    no 

l-kiiowii  case  of 
■i  sMiricicnt  to  eii- 
!■<  not  iiu'i't'ly  i-lio 
in  iiiiiintain  such 
uMit.  It  was  all 
Ail  tiiv'  chiinncy- 
s  cousidorc'd  that 


DAMAdi:  wrriiorr  -  is.niiY." 


ciiAsimoin:  \.  ishiiaiids. 

[7   II.    L.   ("as.  ise.l.] 

A  town    cannot   easily   have  too   L'ood    a   sup[)ly   of 
water,  and   no  doiiht  the  Boaid   of  Health  of  the  town 


that  was  rpiitc  a  sn(IU-iciit  foiniilation  for  an  action  of  trover  as 
ajjainst  a  mere  wrou'^-docr.  On  tin-  same  principle  (vi/..:  that 
mere  posse.ssiou  is  sulllcient  as  against  i\.  wrougnloer)  rests  a  well- 


254 


I.KAI)I\(f    CASKS    SIMrLlIMKI). 


% 


u 

■  ) 
.1 

1 

■ 

,1 

••« 

u    to 

>** 

:■? 

of  Crovdon  wciv  i)iil>li(i  iKMiofartors  when  in  tlu'  \v;\\ 
1851  llicy  s.'iiik  :i  sijltstaiitial  woU  sind  supplicil  lli(« 
good  pcoj)])^  ol' Ci'ovdon  with  pure  wiilcr  at  tlio  rale  of 
six  luindrcd  llioiisaiid  i:aIloiis  a  dav.  W\\\  \\w  public 
iiaiii  was  Mr.  CliasiMiiorc's  loss.  Tliat  irciilicinaii  was 
tlio  occupier  ol'  a  iiiill  situated  on  the  river  Waiidlc 
{xbout  a  mile  iVoni  (^'oydoii,  and  had — he  and  his 
jiredecessors  —  used  the  river  lor  the  last  seventy 
years  for  turniiii::  his  wheels.  It  may  well  he  imaiiinecl, 
therefore,  that  he  was  extremely  disgusted  to  find  that 
the  elfect  of  what  tlu^  Hoard  of  Health  had  donif  was 
to  j)revent  an  enornjous  (|uantity  of  water  from 
ever  reaching  the  AVandle  or  his  mill.  The  miller, 
tliey  say,  wots  not  of  all  tin;  water  that  goes  hy  his 
mill.  Very  likely.  r)iit  ('has(>more  wotted  of  a  good 
deal  of  water  that  did  nnf  go  hy  his  mill,  and  went  to 
hiw.  Unfortunately,  however,  he  was  not  successrul. 
The  judges  told  him  that,  though  he  was  very  much  to 
be  symi)athize(l  with,  lu^  had  no  legal  remedy.  Thi-re 
was  damage  {(hnmunn)  l)ut  not   injury  {iiij'iirid). 

This  ease  and  Ashhi/  v.  ]V//ifr  illustrate  the  distinc- 
tion between  what  the  lawyers  call  hijiwia  s/iic  (hnuiio 
and  (hnuuHiii  sine  injuvla ;  /.'\,  injury  Avliere  there  i> 
no  damai^e,  ami  damage  where  there  is  no  iniurv.  If 
a  man  can  show  the  former  h(>  is  all  I'ight — he  mav 
rely  on  getting  some  recompense  at  the  hand  of  the 
law  ;  but  if  he  can  only  show  the  hitter,  his  case  is 
hopeless.  Wherever  a  jierson  has  sustained  what 
the  law  calls  an  "  injurv,"  there  he  maA'  ])rinu'  an  ac- 


known  rule  in  actions  of  ejoctinont,  namely,  that  the  plaintiff  must 
recover  by  the  strenjith  of  his  own  title,  and  not  hy  tlic  weakness 
of  his  opijonent's.  Possession,  as  to  the  popular  adage  has  it,  is 
nine-tenths  of  the  law. 


MISC'KI.LANKOl  S     lOUTS. 


2.').') 


II" 


lloii  willioiit  Ix'injjj  mulcr  tin*  upccssity  (if  pi'oviii^ 
spcH'iiil  (iMiiiMirc,  lit'ciiiisi!  ilu'  iiijuiy  ilsclf  is  t.iUfii  to 
imply  (l:iiii;i;_''('.  A  Icinkcr  once  (iislionorcil  tin?  cIh'cjuu 
ot"  !i  customer  who  really  had  |)leiity  ol'  money  in  tiic 
l.anU,  and  the  customer  thereupon  Itrou^ht  an  action 
ai^ainst  him.  It  was  held  that  the  action  was  main- 
lainahlc,  allhoiiirh  the  plaintill'  had  not  sustained  any 
jo-s  whatever  Itythe  l>ankei'"s  wroniiful  act.  There 
was  no  i/diiiiiKia,  hut.  there  was  tnjiiriii,  and  tliat  was 
(juilc  sullicii'ul.'  Such  was  Mr.  Ashhy's  case;  he 
could  show  1H>  '*  damauc,"  l)ut  he  had  sustained  an 
•*  injury  ""  and  hence  his  a<lion  was  allowed. 

On  the  other  hand  it  is  not  everythin<;'  that  tlu;  law 
Inands  as  an  •'  injury.""  Thi*  most  terrible  wroni^s 
may  he  inllicted  I>y  one  man  on  another  withouL  re- 
di'i'ss  heini:;  ohtainalde.  It'  you  are  driving  a  llourish- 
ing  trade  as  a  s<'h()olmaster,  and  I  come  and  set  up  a 
school  just  oi)p()site  to  yours,  and  the  Ijovs  desert  you 
and  ilocli  to  nu',  there  is  no  "injuria"  here,  even 
though  I  may  have  turneil  schoolmasti-r  for  the  express 
l)urp()s(;  of  ruining  you.  It  is  ddimnan  .'<iiie  injuria, 
and  you  hav(^  no  rigiit  ol'  action  against  nn*.  Mr. 
('has«Mnore"s  I'omplaint  was  one  of  I  his  kind;  he  had 
sulh'rcd  damage  enough,  a  good  deal  more  than  Mr. 
Ashhy  had,  —  hut  there  was  no  legal  "injury"  to 
him,  in  what  the  Hoard  of  Ileallh  had  done. 


'  Marzotti  y.  Williams,  1  liani.  .<:  AiloUlJ. 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


1.25 


1^128     |2.5 

|50     "^H        M^S 

^  1^  lll"^ 

iM    111112.0 


1.8 


1.4 


6" 


V] 


<^ 


/2 


/ 


/A 


'^ 


V 


Photographic 

Sciences 

Corporation 


# 


^ 


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s> 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14S80 

(716)872-4503 


^ 


l/j 


;:  .;  J 


256 


LEADING    CASKS    SIMPLIFIED. 


''A- 


TJiESPASS: 


•i^i 


THE  8IX  CAUPEXTERS'   CASE. 

[8  Co'-      !•*(!;  1  Smith's  Ld.  Cas.  217.] 

It  w.'is  Oil  a  v/:i-iu  Sopteinber  afternoon  in  the  early 
days  of  James  ti'^  Fii'st,  that  six  thirsty  carpenters  cn- 
teretl  a  London  tnvern,  called  the  waiter,  one  .Tolm 
Ridding,  and  "  did  there  bny  and  driidc  a  qnart  of 
wine,  and  there  paid  for  the  same."  Mark  that,  gentle 
reader,  they  jiciid  for  it.  l>nt  a  (jnart  of  wine  does  not 
20  far  with  six  lustv  workin<;men,  and  the  reader  will 
scarcely  bo  surprised  to  hear  that,  lik(;  Oliver  Twist, 
they  asked  for  more.  The  waiter  accordingly  brought 
thetn  "  another  quart  of  M'ine  and  a  ])enny worth  of 
bread,  amounting  to  8d."  Whether  the  worthy  pub- 
lican acted  on  the  princi[)le  that  when  men  havi^  well 
drunk  they  will  be  satistied  with  any  [)oison,  or  what- 
ever the  reason  may  have  been,  when  the  banfjuet  was 
over  and  the  reckoning  came,  our  friends  stoutly  ri'- 
fiised  to  pay.  For  this  indignity  the  landlord  brought 
an  action  of  trespass  against  the  whole  six,  iin.l  the 
question  now  was,  whether  this  non-payment  made 
their  original  cntr3Mnl()  the  tavern  tortious  ;  in  other 
words,    whether    it  made  them  fre. ^^a <<■<<(' rs    ah    initio. 

This  (piestion  was  decided  in  the  negative,  the  judges 
holding  that  mere  ?/o?i-feasance  is  not  enough  to  make 
u  man  a  trespasser  ah  initio.  Two  thinirs,  thov  added, 
must  always  concui'  to  make  a  man  a  trespass(U'  al) 
initio:   first,  he  nmst  be  guilty  of  wa'.s-feasance  ;  and 


MISCKLLAXEOL'8    TORTS. 


257 


'1 


o 

the 

itio. 

lake 
led, 
ah 
iuul 


secondly,  the  iiuthority  he  Jihuscs  must  bo  one  p:iven 
him  by  tlie  laio  uiid  not  l)y  an  in  Mvidual. 

The  authority  these  g(>ntlemon  abused  was  clearly 
one  conferred  on  them  hy  the  law.  The  law  <2;ivcs 
every  man  a  right  to  enter  and  take  his  ease  in  an  inn, 
and  if  they  had  been  guilty  of  misfeasance  {e.g.-,  if 
they  had  broken  mine  host's  glasses  or  his  head)  they 
would  have  been  trespassers  ah  initio.  But  they  were 
only  guilty  of  no7i  feasance,  viz.,  of  declining  to  pay 
for  their  liquor.  The  reason  wliy  misfeasance  does 
not  make  a  man  a  trespasser  ah  initio  when  the  author- 
ity is  conferred  by  an  individual,  would  seem  to  be 
tliat  those  who  voluntarily  give  powers  can  limit  or 
recall  them  as  tliey  please,  wliile  the  abuse  of  powevs 
given  l)y  the  law  needs  a  more  stringent  protection. 

The  "  Apprentice  of  Lincoln's  Tun  "  has  turned  the 
Six  Carpenters'  Case  into  poetry,  with  what  success  the 
readei*  may  judge  from  the   following: — 

"This  case  befoU  at  four  of  the  clock 

(now  ILstcuctli  what  I  shall  .say), 
and  the  year  was  the  seventh  of  James  the  First, 

on  a  fine  Septeml)er  day. 
The  birds  on  the  bouuih  sinji;  loud  and  sinj?  low, 

what  trespass  shall  be  ab  initio. 

It  was  Thomas  Newman  ami  live  his  feres 
(three  more  Avould  have  made  them  nine), 

and  they  entered  into  John  Vaux's  house, 
that  had  the  Queen's  Head  to  sijin. 

The  birds  on  the  boush  sing  loud  and  sing  low, 
what  trespass  shall  be  ab  initio. 

They  called  anon  for  a  (piart  of  wine 

(they  were  carpenters  all  by  trade), 
and  they  draidv  about  till  tlu'y  drank  it  out, 

and  when  they  had  drunk  they  paid. 

The  birds  on  tlic  l)ough  sing  loud  and  sing  low, 

what  trespass  shall  be  ab  initio. 
17 


:m 


^\ 


258 


LEADING   CASES   SIMrLlEIED. 


,*"'.., 


k 


One  spake  this  word  in  John  Ridding' s  ear 
(wliite  mancliets  are  sweet  and  line)  : 
"Fair  sir,  we  are  fain  of  a  penn'orth  of  bread 
and  another  quart  of  wine." 

Tlie  birds  on  tlie  bougli  sing  1*  ud  and  sing  low, 
what  trespass  shall  be  ab  initio. 

Full  I'ghtly  thereof  they  did  eat  and  drink 

(to  drinlv  is  iwis  no  blame). 
"Now  tell  me  eight  pennies,"  quoth  Master  Vaux; 

but  they  would  not  pay  tlie  same. 
The  birds  on  tlie  bougli  sing  loud  and  sing  low, 

what  trespass  shall  be  ab  initio. 

**Ye  have  trespassed  with  force  and  arms,  ye  knaves 

(the  six  be  too  strong  for  me), 
but  your  tortious  entry  sliall  cost  you  dear, 

and  that  the  King's  court  shall  see.'' 
The  l)ii'ds  on  the  bough  sing  loud  and  nought  low, 

your  trespass  was  wrought  ab  initio. 

Sed  per  totam  curiam  'twas  well  resolved 

(note,  reader,  this  difference) 
that  in  mere  not  doing  no  trespass  is, 

and  Jolin  Vaux  went  empty  tlience. 
The  birds  on  tlie  bougli  sing  loud  and  sing  low, 

no  trespass  was  here  ab  initio. 


I*' 


IT 

•5'?. 

I)'. 
n 


POWERS  OF  SHERIFFS. 


SEMAVXE'S  CASE. 

[5  Coke,  !)1 ;   1  Smitli's  Ld.  Cas.  183.] 

This   case    is    the  principal  authority  for   the   old 
saying  that  "  a  man's  house  is  his  castle." 


MISCELLANEOUS   TOUTS. 


259 


old 


Berisford  and  Greshtim  Averc  two  gay  young  sparks 
of  the  sixteenth  century.  Thov  wore  ureat  chums, 
and  lived  together  in  a  house  at  Blackfriars,  of  which 
they  were  joint  tenants.  Berisford,  as  in  the  manner 
of  gilded  youth,  plunged  deeply  into  debt,  and  one  of 
the  largest  and  most  pressing  of  his  creditors  was  a 
iientleman  who  mav  or  not  have  l)een  his  tailor,  a  Mr. 
Semayne,  to  whom  ho  "  acknowledued  a  reeojxnizance 
in  the  nature  of  a  statute  staple  ;  "  — a  ceremony  which 
would  be  prettv  nnioh  like  a  Berisford  of  our  day  siv- 
ing  an  I.  O.  U.,  or  otherwise  coinmittiug  himself  on 
paper.  In  these  impecunious  circumstances,  he  wrs 
lucky  enough  to  die,  and,  by  right  of  survivorship,  the 
ownership  of  the  house  in  Blackfriars  became  vested 
in  the  bereaved  Gresh;  n.  Now,  in  that  house  were 
"  divers  goods  "  of  the  late  l\Ir.  Berisford,  and  to 
these,  in  virtue  of  the  little  formality  of  the  statute 
stajjle,  Semayne  not  unrcasona!)ly  considered  himself 
entitled.  Accordingly,  ho  gave  instructions  to  the 
sheritts  of  London  to  2:0  and  do  the  best  thev  could  for 
him,  and  those  functionaries,  armed  with  the  proper 
■writ,  setort'for  Blackfriars.  But,  when  they  came  to  the 
house,  Gresham,  who  had  an  inkling  of  what  they  had 
come  for,  shut  the  door  in  their  faces,  "  whereby  they 
could  not  come  and  extend  the  said  goods."  It  Avas 
for  thus  "  disturbinn'  tlie  execution,"  and  causing  him 
to  lose  the  benefit  of  his  Avrit,  that  Semayne  brought 
this  action.  ]Mucli,  however,  to  his  surprise  and  dis- 
gust, he  did  not  su(;ceed,  for  the  jud-  es  said  that  Gres- 
ham had  done  nothiuii;  wroni;  in  locking  the  front  door. 
And  they  resolved  that  the  following  was  the  law  of 
the  land  on  the  subject : — 

1.  The  house  of  every  one  is  his  castle,  and  if  thieves 


i  fn 


i\-     ! 


260 


LEADING    CASES    SI.MPLIFIKD. 


-I 
Pi 


I*. 


come  to  .'I  man's  house  to  rob  or  inunler  and  t'ne  owner 
or  his  servants  kill  any  of  the  thieves  in  defence  of  him- 
self or  his  house,  it  is  no  felony. 

2.  It  is  not  lawful  for  the  sheriff  at  the  suit  of  a 
connnon  person  to  break  into  the  defendant's  house  iu 
order  to  execute  any  civil  process  —  the  defendant's 
house  is  his  castle. 

3.  A  man's  house  is  not  his  castle  when  the  king  is 
a  party,  —  i.e..  when  the  man  is  wanted  for  a  fc\)ny  or 
misdemeanor.  But  even  then,  before  tlu;  onto,  door  is 
broken  open,  the  caller  ought  to  ask  to  bo  allowed  to 
enter  quietly. 

4.  A  man's  house  is  not  his  castle  when  some  one 
else  has  got  the  l)etter  of  him  in  an  action  of  ejectment. 
In  this  case,  of  course,  it  lias  ceased  to  l»e  his  house 
at  all,  and  therefore  has  ceased  to  be  his  castle. 

5.  A  man's  house  is  not  his  castle  when  the  outer 
door  is  open.  The  sheriff  having  once  gained  admis- 
sion into  the  house  may  break  open  as  many  inner 
doors  as  he  pleases. 

6.  A  man's  house  is  not  his  castle  for  anyone  except 
hhnself  and  hisfamih/.  lie  may  not  shelter  therein  a 
person  Avho  takes  refuge  in  his  house,  or  who  removes 
his  goods  there  to  prevent  the  sheriff  getting  hold  of 
them. 


MISCELLANKOUS    TOUTS. 


261 


ACTIONS  AGAINST  MAGISTRATES. 


CREPPS    V.   DURDEX. 


[Cowp.  (;40;   1   Smith's  Ld.  Oils.  800.] 

One  Suiidiiy  morning  Peter  Crcpps,  instead  of  being 
at  cluirch  was  selling  hot  rolls  on  the  streets  of  Lon- 
don to  whoever  wotdd  buy.  As  this  could  not  be  con- 
strued as  a  "  work  of  necessity  or  charity  "  Peter  was 
broujiht  before  INIairi'^trato  Durden  and  chariicd  with 
exercising  his  ordinary  calling  on  the  Lord's  Day,  con- 
trary to  a  statute  of  Charles  IL  which  prohibited  such 
goings  on  on  Sunday  under  a  penalty  of  5.s'.  Now,  as 
it  happened  that  Peter  had  sold  four  hot  rolls,  the 
worthy  magistrate  fined  him  £1,  that  is  to  say  5.s'  a 
roll.  But  Peter  Avas  dissatisfied  with  this  proceedino;, 
and  soon  after  commenced  an  action  of  trespass  against 
the  magistrate.  He  was  successful,  all  the  judges 
agreeing  that  Peter  had  been  fined  lo.s-.  too  much. 
Said  Lord  Mansfield:  "The  penalty  incurred  by 
this  offence  is  5.s.  There  is  no  idea  conveyed  l)v  the 
act  that  if  a  tailor  sews  on  the  Lord's  Day  every  stitch 
lie  taUes  is  a  separate  offence,  or  if  a  shoemaker  or 
carpenter  Avorks  for  dltrerent  customers  at  different 
times  on  the  same  Sunday  that  those  are  so  many  sep- 
arate and  distinct  offences.  There  can  be  but  one  en- 
tire offence  on  one  and  the  same  day." 


-.m 


202 


LEADING    CASES    SIMPLIFIED. 


MAL TCIOUS   PROSECUTION. 


MUXXS  V.  DUTOXT. 


[3  Wash.  C.  Ct.  31 ;  1  Am.  Ld.  Cas.  200.] 


•  •«!' 


) 


Muiins,  the  supcriiitoiuleiit  of  a  i)o\Y(lcr  factory  in 
Virginia,  went  up  to  Delaware  to  endeavor  to  iiiul  ont 
the  process  cmph)yecl  in  a  factory  there  owned  by 
Dupont  &  Co.  He  approached  the  workmen,  induced 
one  of  them  to  procure  him  patterns  of  the  machinery 
they  used,  and  also  an  important  })ieco  of  the  uiachinery 
itself.  Dupont  &  Co.  were  very  Jingry ;  thc^y  had 
taken  great  pains  to  preserve  the  secrets  of  their  trade, 
and  so  when  they  heard  that  he  had  left  the  place  they 
followed  him  to  Philadeli)liia,  where  they  had  him  ar- 
rested for  stealing  their  property.  H3  was  brouglit 
back  to  Delaware,  but  in  the  end  was  acquitted  of  the 
charoo.  Then  he  broni>ht  an  action  aL!:ainst  Dupont  & 
Co.  for  malicious  prosecution,  alleging  that  he  had 
been  greatly  damaged  by  the  acts  of  the  firm  in  mali- 
ciously arresting  him  on  achate  not  founded  on  truth. 
But  it  was  held  tiiat  this  was  uot  the  (juestion  at  all. 
The  question  was,  "Was  the  charge  made  maliciously  and 
without  probable  cause — probable  cause  being  defined 
as  "a  reasonable  ground  of  sns[)ioion  sui)portcd  by 
circumstances  sufficiently  strong  in  themselves  to  war- 
rant a  cautious  man  in  the  belief  that  the  person  ac- 
cused isjruiltv  of  the  offence  with  which  he  ischarjjed." 
Therefore,  if  Dupont  &  Co.  had  this  "  reasonable 
cause,"  it  did  not  matter  at  all  how  much  malice  they 


MISCELLANEOUS    TOUTS. 


203 


may  have  had  against  Miiiins.  The  court  decided  that 
they  had  reasonable  cause  for  the  charge,  so  Munns 
went  home  without  his  damages. 


SLANDER —DEFAMATORY  WORDS,   WHEN 
ACTIONABLE   AND    WHEN  NOT. 


by 


POLLARD  V.  LYOX. 


['.)l  U.  S.  L'25.] 


Mrs.  Polhu'd,  though  unsuccessful,  did  not  go  to 
law  without  some  provocation.  She  sued  Lyon  for 
slander,  for  having  made,  on  several  occasions,  the 
following  rather  personal  statement  in  regard  to  her : 
*'  I  looked  over  the  transom  and  saw  Mrs.  Pollard 
in  bed  with  C;i[)t.  Denty."  She  averred  that  the 
charoe  was  false,  and  that  the  slander  had  damaijed 
and  iniurcd  her  in  her  cood  name  and  fame  to  the  ex- 
tent  of,  at  least,  $10,000.  Notwithstanding  all  this 
she  did  not  recover  anything. 

Defamatory  words  spoken  by  one  person  of  another, 
said  the  court,  are  not  actionable  except  in  four  cases : 

1.  When  they  impute  to  the  party  the  commission 
of  some  criminal  offence  involving  moral  turptitude  for 
which  the  party,  if  the  charge  is  true,  might  be  in- 
dicted  and    punished.     Mrs.   Pollard's  case   did   not 


'wr 


III 


204 


LKAI)I\(}    CASKS    SIMrr.IFIKI). 


come  within  this  exception,  l)ec;inse  tlio  words  nscd  hv 
Mr.  Lvon  cliariied  her  with  ibrnicatioii,  !ind  forniciition 
wtis  not  an  indictal)lo  offence  in  tlie  Disti-ict  ot'Coluni- 
hiii,  where  tlie  words  were  spoken  and  the  action  was 
commenced. 

2.  When  they  impute  that  the  party  is  infected  witii 
some  contagious  disease,  wliere,  if  tiie  ciiariro  was 
true,  it  Would  excdude  him  from  society.  ]\Irs.  Pol- 
lard's case  was  ol)viously  not  one  of  this  kind. 

3.  When  they  a!!ect  the  party  in  his  office,  trade,  or 
occupation.  Nor  could  the  lady's  case  fall  witliin  this 
exception.  But  see  Mr.  Lumbj^'s  case  on  the  next 
page. 

4.  When  they  cause  the  party  special  dauiaire. 
Mrs.  Pollard  had  not  shown  any  "  si)ecial  damaije  " 
as  that  term  is  understood  in  the  law,  and  therefore 
she  could  not  recover  under  tliis  head. 

And  therefore  Mrs.  Pollard's  action,  not  having  a 
single  legal  leg  to  stand  on,  fell,  of  course,  to  the 
ground. 


I* 


UH 


¥ 


i 


\t!\ 


hi' 


LU3II5Y  V.  ALL1>AY. 

[1  Cromp.  &  J.  ;K)L  ;  Uijj;.  Lil.  Cas.  T(»rts,  87.] 

Mr.  Lumby  had  a  comfortable  situation  as  clerk  in 
the  office  of  the  Birmingham  Gas  Company.  Mr. 
Lumby  had  also  an  enemy.  One  afternoon  this 
enemy,  one  Allday,  meeting  him  in  the  street,  and  not 
caring  the- least  for  the  people  around,  who  heard  all 


MISCELLANEOUS   TOUTS. 


2(55 


!l 


lie  said,  abused  Mr.  Luinby  in  very  forcible,  if  not 
elegant  language.  "Yon  are  a  fellow,"  said  he,  "a 
(lisgraco  to  the  town  ;  you  arc  niititto  hold  your  sitna- 
lion  for  your  conduct  with  whores.  You  may  drown 
votu'self,  for  von  are  not  Ht  to  live,  and  are  a  disirrace 
to  the  situation  3'ou  hold."  Luniby's  only  reply  Avas 
an  action  for  slander,  which  he  at  once  instituted, 
alleging  that  ho  was  a  clerk  in  the  Birniinghani  Gas 
Couii)an3',  and  that  Allday,  in  order  to  cause  it  to  be 
believed  that:  ho  was  an  iin[)roper  person  to  hold  his 
situation,  spoke  the  words  above  mentioned.  But  the 
court  held  that  no  action  woidd  lie,  there  beiuix  uo 
proof  of  the  slander  having  caused  him  any  special 
damage.  "The  charge,"  thev  said,  "is  not  action- 
able,  because  the  imputation  it  contains  docs  not  ini[)ly 
the  want  of  any  of  those  qualities  which  a  clerk  ought 
to  possess,  and  because  the  imputation  has  no  refer- 
ence to  ids  conduct  as  clerk."  ^ 


1  The  defamatory  words  to  be  actionable  per  se  must  affect  him 
In  his  particular  calliuii,  i.e.,  must  impute  the  lack  of  some  essen- 
tial (lualidcatiou  for  the  occupation  or  calliuu:  lie  is  euiiaijed  in;  it 
is  not  enough  that  liis  general  reputation  is  affected  thereby'.  The 
charjre  against  Vr.  Lumby  certainly  affected  hisjieneral  reputation, 
but  it  did  not  follow  that,  if  it  was  true,  he  was  unlit  to  bo  a 
clerk.  A  most  terrible  rour  mi^;ht  be  a. very  valuable  book-keeper. 
So  where  D,  who  was  an  attorney,  had  become  Involved  in  transac- 
tions on  the  turf,  and  11  said  of  him,  "he  has  defrauded  his  credi- 
tors, and  lias  been  horse-w!ui)pe(l  off  the  course  at  Doncaster," 
these  words  were  held  not  to  be  actional)le,  beci^iuse  the  creditors 
referred  to  were  sportiuL;  creditors,  and  if  his  clients  were  satisfied 
with  his  skill  as  a  lawyer,  it  did  not  follow  that  they  would  with- 
draw their  business  simply  Ijecause  he  did  not  pay  his  gambling 
debts.  Ayre  v.  Craven,  2  Ad.  &  E.  2.  On  the  other  hand,  where 
morality  is  required  in  a  particular  calling,  to  impute  immorality  to 
one  pursuing  that  calling  is  actionable  per  se.  Thus,  to  charge  a 
minister  of  the  gospel  with  being  drunk,  or  being  guilty  of  obscene 


2GiJ 


LEADING    CASKS    SIMl'LIFIKO. 


DAMAGES   JX  ACTIOXS  OF   TORT. 


VICARS   V.  WILCOCKS. 


[8  East,  1 ;  2  Smith's  Lil.  Ciis.  4«U.] 


*»«;  '!• 


,»*,,, 


'ilj4t,.. 


:W:\l 


K 


Stored  in  his  rope-yiinl,  Mr.  AVilcocks  liiid  ii  (quantity 
of  cxpellcMit  cordiiirt',  which  ho  was  disgusted  ono  day  to 
find  cut  to  rihl)oiis.  Foi*  reasons  which  tlie  n^porter 
does  not  I'avor  us'v  ith,  Mr.  WiU;ocUs'  suspicion  rcstcil 
on  ono  Vicars,  the  servant  of  his  nei!ji:hl)()r,  Mr.  Josluia 
Oakley,  and  not  being  tlio  man  to  k(>cp  his  opinions  {o 
himself,  ho  proclaimed  loudly  on  the  housetops  and  in 
language  the  veiy  jjlainest,  thict  Vicars  Avas  the  scam[) 
who  had  cut  his  cordaire.  B\-and-l»v  it  came  to  the 
ears  of  the  worthy  Mr.  Oakley  that  one  of  his  ser- 
vants  had  been  damaging  his  neighbor's  proi)erty.  Ho 
was  hiuhlv  incensed,  aiid  althoii<;h  A'^icars  had  been 
engaged  for  a  year,  which  was  not  nearly  expired,  \u\ 
immediately  and  without  takinix  the  troul)lo  to  sift  the 
matter,  discharijed  him.     Turned  away  by  his  master, 


practices,  would  bo  actioiiiible  prr  so.  The  stmlont  who  wislies  to 
pursue  this  siil)ject  furtlier  is  referred  to  a  paper  on  "  The  Shuider 
of  a  Tcrson  in  his  Calllnj^,"  in  t\w  American  Law  lievitw  for  Sep- 
tember, 1S81. 

Slander,  i.e.,  o^-al  defamation,  must  be  carefull}'  distinguished 
from  libel;  i.e,  written  or  printed  defamation,  as  the  leijal  rules  re- 
latinij  to  the  actionable  quality  of  each  are  very  different.  Any 
pul)lication,  "  the  tendency  of  which  is  to  degrade  or  injure  another 
person,  to  brini?  him  into  contempt,  ridieule  or  haired,  whicii  ac- 
cuses lilm  of  a  crime  punishable  i)y  law,  or  of  an  act  odious  and 
difirraceful  to  society,  is  a  libel,  and  will  entitle  the  injured  party 
to  damages."     Dexter  v.  Spear,  i  Mason,  115. 


Vi,, 


MISCELLAXKOUS    TORTS. 


2()7 


the  niiiligncd  Vicars  soiiglit  omployniont  from  a  Mr. 
lioger  Prudciu'c  ;  hut  Kogor,  too,  had  heard  oClhn  cut 
cordage  and  refused  to  take  the  rei)uted  proprietor  of 
llie  outrage  into  his  service  on  any  terms.  In  thi?,  k  \- 
tremity  a  happy  tliought,  as  the  luckless  litigant  then 
considered  it,  occurred  to  him  :  why  not  hrin*--  ;ui  ac- 
tion  against  the  owner  of  the  cordage  for  slander,  and 
lay  as  specii.l  !  image  the  dismissal  by  Oakley  and  the 
rejection  hy  Prudence.  But  the  result  did  not  corre- 
spond to  his  sanguine  anticipations,  for  the  court 
decided  against  hiin  on  two  grounds  : 

1.  Because  the  tirst  s[)ecial  damage,  viz.  :  the  dis- 
missal l)y  Oakley,  was  not  the  legal,  hut  the  illegal  con- 
se(jucncG  of  Wilcocks'  words  —  illegal  for  Vicars  had 
l)een  engaged  for  a  year,  and  therefore  his  master  had 
no  right  to  dismiss  him  in  this  sunnnary  way.  "  The 
special  damage,"  said  Lord  ELLExnoKorGii,  "  nmst 
he  the  legal  and  natural  conseciuenco  of  the  words 
spoken.  *  *  *  Here  it  was  an  illegal  consequence, 
a  mere  wrongful  act  of  the  master  for  which  the  defend- 
ant was  no  more  answerable  than  if,  in  consequence  of 
the  words,  other  persons  had  afterwards  asseml)led  and 
seized  the  plaintiff  and  thrown  him  into  a  horse  \Hmd, 
by  way  of  punishment  for  his  supposed  transgression." 
But  on  this  point  see  the  next  case. 

2.  Because  it  was  far  more  likely  that  Prudence's 
refusal  to  emplo}^  him  arose  from  the  simple  fact  of 
his  having  been  dismissed  from  his  last  place  than 
from  the  reason  for  such  dismissal. 


►■;! 


268 


LEADING    CASES    SIMPLIFIED. 


LUMLEY   V.  GYE. 


[2  El.&Bl.  215.] 


m 


%)}■ 


1 

1,1 

1^ 

1 

l! 

!! 

1 

t  ' 

Mr.  Liimley,  the  proprietor  of  Her  Majesty's  Thea- 
tre, London,  had  enLT'isxed  a  very  fascinating  and  ao- 
complislied  actress,  Mademoiselle  Johanna  Wagner,  to 
api)ear  at  his  theatre  in  oi)era,  twice  a  week  for  tlircr 
months  from  the  first  dav  of  April,  l<sr)2.  Miss  "Wauf- 
ner  was  to  receive  a  sahiry  ot  $')()()  a  wceiv,  and  sh(! 
expressly  agreed  that  she  would  not,  during  that  tin.ie, 
use  her  talents  at  any  other  theatre.  Now  ]\Ir.  Gyv., 
a  rival  manager,  and  proprietor  of  Covent  Garden 
Theatre,  when  he  heard  of  this  contract  did  not  like  it, 
at  all,  for  he  wanted  a  new  star  at  his  house.  The 
end  of  it  was  that  hy  offering  her  a  larger  salary,  ]Mr. 
Gve  persuaded  ]Miss  Waijfner  to  break  her  en<;auemeni 
with  Mr.  Luinley,  and  to  perform  for  him.  For  this 
hiterferenco  and  the  damaires  w'.iich  were  caused  hv  the 
actress's  breach  of  contract,  Mr.  Luinley  brought  an 
action  against  Mr.  Gye.^  The  court  held  that  the 
action  Avould  lie.  "It  was  undoubtedlv  y^/'/yMa^c^vV' 
an  unlawful  act  on  th(!  part  of  Miss  Wagner  to    break 


'  Before  talvin^  this  course,  however,  the  lon^-headed  Mr. 
Lumley  applied  to  tlie  Court  of  Cliancery  iu  tlie  uiatter,  and 
asl;ed  an  injunction  to  prevent  lier  from  siuiiiuij;  at  Gye's  Tlieatre. 
Tiie  court  fjranted  tlie  injunction.  "  It  is  true,"  ya.u\  Lord  St. 
Leonards,  the  Lord  Cliancellor,  "  th.it  I  have  not  the  means  to 
compel  her  to  sUv^,  but  she  has  no  cause  of  complaint  if  1  compel 
her  to  abstain  from  the  commis.sion  of  an  act  which  she  lias  bound 
herself  not  to  do,  and  thus  possibly  cause  her  to  fuUll  her  eiiira^ie- 
ment."  Lumley  v.  Wagner,  1  l)e  G.  M.  &  0.  GOO.  But  as  Lumlev 
would  not  have  her  now,  and  Gye  could  not,  the  actress  went  home 
to  reflect  that  honesty  is  perhaps  the  best  policy  after  all. 


^1  ji 


MISCELLANEOUS    TOUTS. 


269 


her  contract,"  said  Wigiitman  J.,  "and  therefore  a 
tortious  act  of  the  defendant  mivliciously  to  procure 
her  to  do  so,  nnd  if  damage  to  the  phiintifl' foHowed  iu 
consequence  of  that  tortious  act  of  the  defendant,  it 
would  seem  *  *  *  l\y^^l  .j,!  .action  on  the  case  is 
niaintaiuablo." 

This  case  has  practically  overruled  Vicars  v.  Wilcochs 
on  one  point.  In  Vlcavs  v.  Wilpocks  it  was  laid  down 
that  the  damage  in  respect  of  which  an  action  is 
brought  must  have  l)een  the  le;/al  consequence  of  the 
defendant's  act.  If,  the  court  said,  as  the  consequence 
of  the  defendant's  slander,  a  mob  had  ducked  the 
plaintilfin  a  horse-pond,  such  a  consequence  would  be 
an  iUerjal  and  unnatural  consequence  of  the  slander, 
and  could  not  be  taken  into  account  in  estimatinir  the 
compensation  to  be  i)aid  by  the  defendant  to  the  plam- 
tiff.  Lumley  v.  Gye,  however,  alters  this  rule  by 
allowing  the  Avrongful  act  of  a  third  party  to  form  part 
of  the  damage  where  such  wrongful  act  might  be  nat- 
urally contemplated  as  likely  to  arise  from  the  defend- 
ant's conduct.' 


NO  CONTRIBUTION  BETWEEN  DEFENDANTS 

IN  TORT. 


MERRYWEATHER  a  .  XIXAN. 

[8  Term  Rep.  ISC;  2  Smith's  Ld.  Cas.  457.] 

Merryweather  and  Nixan,  in  the  fulness  of  their  ani- 


«  Shirley  Ld.  Cas.  239. 


270 


LEAUINO    CASES    SIMPLIFIED. 


V 


iji'il 


■  *<^'* 


mal  spirits,  dcstroj'cd  the  macliineiy  and  injured  the 
mill  of  one  Starkcy.  The  mill-owner  was  not  prepared 
to  submit  tamely,  and  brouirlit  an  action  against  the 
l^air  of  them.  The  jury  gave  him  £840  as  damages, 
and,  instead  of  getting  £420  from  each  he  made  Mer- 
ryweather  pay  the  whole  £840.  Merryweather  — 
small  blame  to  him  — did  not  see  Avhy  he  should  pay 
for  Nixan's  whistle  as  well  as  his  own,  and  sued  his 
•'  pal"  for  contribution,  that  is  to  say,  for  £420,  In 
fairness,  of  course,  Nixan  ought  to  have  made  no  diffi- 
culty about  paying  it  ;  but  he  steadfastly  declined  to 
do  anything  of  the  sort.  The  law  backed  him  up  in 
this  refusal,  for  ex  turpi  causa  iion  oritur  actio,  which 
means  that  a  man  shall  riot  be  allowed  to  found  an  ac- 
tion on  something  tliat  he  ouirht  to  be  ashamed  of; 
and  Merryweather  ought  to  have  been  very  much 
ashamed,  indeed,  of  having  injured  Starkey's  mill. 

There  is  no  contribution,  said  the  court,  between 
defendants  in  tort.  In  contract  there  is.  If  there  are 
two  sureties,  and  one  of  them  is  made  to  pay  the 
whole  debt,  he  can  sue  his  brother  surety  for  half 
of  what  he  has  paid.  In  such  a  case  there  is  no  lurpis 
causa. 


Pi- 


EVIDENCE,  ETC. 


271 


XYI .  —  E viDKxcE ,  Etc  . 


HEARSAY  EVIDENCE. 


DIDSBUKY  V.  TH03IAS. 


.     [U  East,  323 ;  2  Smith's  Ld.  Cas.  444.] 

Like  all  land  cases,  this  is  a  very  dry  one,  and  the  stu- 
dent will  doubtless  ho  better  able  to  grasp  the  principles 
whicli  it  announced,  after  a  short  preliniiniiry  study  of 
the  more  modern  and  more  entertaining  case  of  Bar- 
dell  V.  Pickwick,  2  Diclc.  104,  a  reporter  with  which 
most  readers  are  already  pretty  familiar.  In-  the 
course  of  this  trial  before  Mr.  Justice  Staiileigii,  Mr. 
Sanmel  AVeller,  it  will  be  remembered,  was  called  as  a 
witness.  We  give  the  scene  in  the  exact  words  of  the 
genial  reporter  :  — 

Sergeant  Buzfiiz  now  rose  with  more  importance  than  he  had 
yet  exliibited,  if  that  were  possible,  and  vociferated,  "  Call  Samuel 
Weller." 

It  was  quite  unnecessary  to  call  Samuel  Weller;  for  Samuel 
Weilcr  stepped  briskly  into  the  box  the  instant  his  name  was  pro- 
nounced ;  and  placini;;  his  hat  on  the  floor,  and  his  arms  on  the  rail, 
took  a  bird's-oyo  view  of  the  bar,  and  a  comprehensive  survey  of 
the  bench  with  a  remarkably  cheerful  and  lively  aspect. 

"  What's  your  name,  sir?"  inquired  the  judge. 

«'  Sam  Weller,  ray  Lord,"  replied  that  gentleman. 


I!: 


ii*" 

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P 

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■**'■■■ 

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272 


LEADlXCr    CASKS    SIMl'LIFIKI). 


"Do  j'on  spell  it  witli  a  '  V '  or  a  '  W?  "  inquired  the  judge. 

"Tliat  depends  upon  tlie  taste  and  fancy  of  the  speller,  my  Lord," 
replied  Sam,  "  1  never  had  occasion  to  spell  it  more  than  once  or 
twice  in  my  life,  but  I  spells  it  with  a  '  V.'  " 

Here  a  voice  in  the  gallery  exclaimed  aloud,  "Quite  right,  too, 
Samivel,  (piite  right.  Tut  it  down  a  we,  my  Lord,  put  it  down  a 
we." 

"Who  is  that,  who  dares  to  address  the  court?"  said  the  little 
judge,  looking  up,  "  Usher." 

"Yes,  my  Lord." 

"  Bring  tliat  person  here  instantly." 

"Yes,  my  Lord." 

But  as  tlie  usher  did  not  Und  the  person,  he  did  not  bring  him; 
and,  after  a  great  commotion,  all  the  people  who  had  got  up  to  look 
for  the  culprit,  sat  down  again.  The  little  judge  turned  to  the  wit- 
ness as  soon  as  his  indignation  would  allow  him  to  speak,  and 
said :  — 

"  Do  you  know  who  that  was,  sir?  " 

"  I  rayther  suspect  it  was  my  fatlior,  my  Lord,"  replied  Sam. 

"Do  yon  see  him  here  now?  "  said  the  judge. 

"No,  I  don't,  my  Lord,"  replied  Sam,  staring  right  up  into  the 
lantern  in  the  roof  of  the  court. 

"  If  you  could  have  pointed  him  out,  I  would  have  coraraitted 
him  instantly,"  said  the  judge. 

Sam  bowed  his  aclcnowledgments  and  turned,  with  unimpaired 
cheerfulness  of  countenance,  towards  Sergeant  Buzfuz. 

"Now,  Mr.  Welter,"  said  Sergeant  Buzfuz. 

"Now,  sir,"  replied  Sam. 

"  I  believe  you  are  in  tlie  service  of  Mr.  Pickwick,  the  defendant 
in  this  case.     Speak  up,  if  you  please,  Mr.  Weller." 

"  I  mean  to  speak  up,  sir,"  replied  Sam,  "  I  am  in  the  service  o' 
that  'ere  gen'l'm'n,  and  a  wery  good  service  it  is." 

"  Little  to  do  and  plenty  to  get,  I  suppose?"  said  Sergeant  Buz- 
fuz, with  jocularity. 

"Oh,  (luite  enough  to  get,  sir,  as  the  soldier  said  yen  they  or- 
dered him  three  hundred  and  fifty  lashes,"  replied  Sam. 

"  YdU  must  nottcll  us  what  the  soldier,  or  any  other  tnan  said,  sir,'^ 
interposed  the  judge,  "  ifs  not  evidence.''^ 

Didshury  v.  Thomas,  illustrates  the  rule,  that  what 
the  other  man  said  is  not  evidence,  because  the  other 
man  was  not  under  oath  wheu  he  said  it.     One  Ann 


EVIDENCE,  ETC. 


273 


Dldsbiiry  brougbt  ;ui  iutioii  oi  cjoctincui  to  get  liokl 
of  :i  fjinn  of  lhirfv-i!vc  iioros;,  called  tho  MerulovrFidiii, 
ill  Deil)ysi,iio.  She  oluiineit  it  uiidci  li.e  will  of  ;-  Mr. 
Sainiiul  White.  The  Avili  vv:is  dated  Nv^veinher  :}',!. 
17r)4,  and  the  chief  obstacle  to  \iin's  siicc-ss  '.vas  t*) 
prove  that  the  l.-uuls  wmv  the  testator's  at  that  timr. 
Til  support  of  her  ease  she  called  a  /itiiess  who  swore 
that  the  r.tnu  in  q  le-'tioii,  t()ijC;:hcr  with  another  farm 
called  Foxh'w's  Croft,  was  icpuLcd  to  i:  ve  been  Sir 
.John  Statham's,  and  to  hive  Ixicii  ))urcha'^("^  at  the 
siiine  L'.nr>  with  it,  hy  »Sainuol  White  of  Sir  r?^ohn. 
That,  of  coni'se,  alone  <li(l  not  1)X  any  piirti*  ijlar  unJe. 
But  to  siipplenitMit  this  e.  i!L!nce,aiid  in'ikc  it  serve  th:' 
good  Vvoin-Mrs  CMiiso.,  a  deed  .''as  [>ro»liiced  ihited 
March  2i>,  170:',  whei-el.  /  in  consil ovation  t»'' natural 
love  a:)'!  airccinai  ^)ld  Sjimii'^l  Wl'itc  ^arjjr/ined  and 
enfeofl';''!  ]m  son  Eo  vard  of  I'oxlow'-i  C'"oft,  **  idl 
which  said  farm,  etc.,  Iiiive  Id  ii  lately  ]>iircl!ased, 
amomjH  oth'  "  laml'^  and  Itereditameuf.<,  by  the  said 
Samuel  White,  of  a')d  from  f^ir  dohn  Slathani." 

Tt  w:  s  clearly  ^jvovcd  that  liich:;rd,  the  le.itntor's 
eldest  son,  hau  taken  ))os.ie  ision  of  find  occupied  the 
Meadow  Faun  ."t  the  s;i:no  time  t'i.ct  h's  y  .unger 
brother  Ned  had  b^gun  to  <>'  '■upy  1^  oxlew's  Croft ; 
and  also  that  tne  person  iiamed'atcly  preceding  Richard 
ill  the  occupation  of  the  ^Aladow  Farm  was  tenant  to 
Sir  John  :  and  the  [)laintilt'  s  ^o'lneel  aigued  thot  un- 
der the  circumstances  the  eviden  "r  of  repu  atioii  coiJd 
bo  received.  It  was  held,  hoAvevei,  t!»at  the  evidence 
could  not  be  received,  as  it  was  only  hearsay. 

Hearsay  —  i.e..,  what  the  other  man  said,  or  to  speak 
more  correctly,  statements  made  b}^  a  person  not 
called  as  a  witness  — is  not  admissible  in  evidence  in 


I 


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18 


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ill  MS 


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14. 
I*; 


1    '' 
i 

Ii 


274 


LEADING   CASES    SIMPLIFIED. 


courts  of  liiw.  But,  us  usual,  we  no  sooner  announce 
the  rule  than  we  come  upon  the  exceptions.  These 
exceptions  arc  as  follows.^ 

1.  Hearsay  is  admissible,  resjyecling  matters  of  'pub- 
lic and  general  interest,  such  as  the  boundaries  of  coun- 
ties or  townships,  claims  of  highways,  etc.  The 
reason  for  the  exception  in  this  case  is  that  the  origin 
of  such  rights  is  generally  obscure  and  incapable  of 
better  proof;  that  people  living  in  the  district  are 
naturally  interested  in  local  matters  and  likely  to  know 
about  them,  and  that  reputation  cannot  well  exist 
without  the  concurrence  of  many  persons  who  are 
strangers  to  one  another  and  yet  equally  interested. 
Such  declarations,  however,  to  be  evidence  must  have 
been  made  a)ite  litem  motam,  that  is,  before  any  dis- 
pute on  the  sujcct  has  arisen.  They  must  also  be  con- 
fined to  general  matters,  and  not  touch  jjarticular 
facts.'-  Illustrations.  —  The  question  is  whether  a 
road  is  public.  A  statement  by  A.  (deceased),  that  it  is 
public,  is  admissible.^  A  statement  by  A.  (deceased), 
that  ho  planted  a  willow,  still  standing,  to  show  where 
the  boundary  of  the  road  had  been  when  a  boy,  is 
inadmissible,* 

2.  Hearsay  is  admissible  in  matters  of  pedigree. 
Illustration.  —  The  question  is  which  of  three  sons 
(For,t,unatus,  Stephaiuis,  and  Achaicus),born  at  a  birth. 


'•'  On  this  subject  the  student  will  do  well  to  consult  Mr,  Justice 
Steimikn's  admirable  Digest  of  the  Law  of  Evidence,  From  this 
work  I  have  talvca  the  illustrations  given  in  the  remainder  of  this 
case. 

2  Shirley  Ld.  Cas.  243. 

s  Crease  v.  Barrett,  1  Crorap.  M.  &  R.  919. 

«  Reg  V.  Bliss,  7  Ad.  &  E.  550, 


w 


IS 


EVIDENCE,  ETC. 


275 


is  the  eldest.  The  fact  thiit  the  father  said  that  Achaicus 
was  the  3'ouiigest,  and  he  took  their  names  from  St. 
Paul's  Epistles  (See  1  Cor.  xvi.  17),  and  the  fact  that 
a  relation  present  at  the  birth  said  that  she  tied  a 
strinij  around  the  second  child's  arm  to  distinsfuish  it, 
are  relevant."  Such  declarations,  together  with  in- 
scriptions on  tombstones,  entries  in  family  Bibles,  and 
the  like,  are  admissible  on  tlie  principle  that  they  are 
the  natural  effusions  of  a  person  who  must  know  the 
truth  and  has  no  motive  for  misrepresenting  it. 

3.  An  admission  2))'ci'iousIi/  madt  '>>/  a  party  to  the 
action,  or  one  interested  in  it  is  admissible.  Illustra- 
tion. —  The  assignee  of  a  bond  sues  the  oblinor  in  the 
name  of  the  obligee.  An  admission  on  tiie  part  of  the 
obligee,  that  the  money  due  has  been  paid,  is  admissi- 
ble on  the  part  of  the  defendant. 

4.  An  admission  made  by  an  agent  authorized  to 
make  it,  eitJtpr  exjiressl//  or  by  the  conduct  of  the  prin- 
cipal, is  admissible.  Illustiiatiox.  — The  question  is, 
whether  a  parcel,  for  the  loss  of  which  a  railroad 
company  is  sued,  was  stolen  by  one  of  their  servants. 
Statements  made  by  the  station-master  to  a  policeman, 
suggesting  that  the  parcel  had  been  stolen  by  a  porter 
are  admissible  as  aijainst  the  railroad.^ 

5.  A  voluntanj  confession  made  by  a  person  charged 
ivifh  a  crime,  is  admissible. 

6.  Dying  declarations  as  to  cause  of  death  are  ad- 
missible in  murder  and  manslaughter  cases. 

7.  Hearsay  is  admissible  as  part  of  the  transaction, 
or  as  it  is  technically  called,  as  part  of  the  res  gestae. 


i 


1  Kirkstall  Brewery  Co.  v.  Furaess  R.  Co.,  L.  R.  9  Q.  B.  468. 


276 


LEADING    CASKS    SIMl'MFIKD. 


Thus  A.'s  declanitloii  in  l)ii3niig  money  that  he  pays  us 
agent  of  B.,  is  admissible.' 

8,  Hearsay  is  admissible  as  to  declarations  of  jter- 
sons  since  deceased,  made  in  the  ordinary  course  of 
their  business.  Onlliis  point  see  J^/'2*ce  v.  Torrington^^ 
a  case  of  delivery  of  beer. 

9.  Hearsay  is  admissible  as  to  declarations  by  per- 
sons since  deceased,  against  their  interest.  On  this 
point  see  Iligham  v.  Ridgway,^  a  ease  of  delivery  of 
babies. 


DECLAllATIONS  BY  PERSONS  SINCE  DE- 
CEASED. 


PRICE   V.  EARL   OF   TORRIXGTOX. 


[Salk.  285;  1  Smith's  Ld.  Cas.  3!)0.] 


I; 


i 


This  was  an  action  by  a  brewer  against  the  defend- 
ant for  beer  which  his  household  had  drunk.  The 
practice  at  the  plaintiff's  brewery  was  for  the  dray- 
men who  had  taken  out  beer  during  the  day  to  sign 
their  names  in  a  book  kept  for  the  purpose  before  they 
hied  them  home  for  sweet  repast  and  conjugal  joys. 
The  particular  drayman  who  had  taken  Lord  Torring- 


'  Wliart.  on  Ev.,  sect.  2G2. 

2  Post. 

3  Post,  p.  277. 


rs  US 


EVIDKXCK,  KTC. 


277 


ton  liis  heer  was  dead,  but  ho  had  duly  made  his  entry, 
and  the  fj^uostion  was  whether  it  was  adniissiblo  evi- 
dence for  the  phiintifl*.  It  was  held  that  it  was,  on  the 
ground  that  it  was  an  entry  made  ht/  a  disinterested 
perso)i  in  the  ordinary  course  of  his  business. 


DECLARATIOXS  BY  DECEASED    PERSONS 
AfiAlNST  THEIR  INTEREST. 


HIGHAM  V.    UIDGWAY. 


sign 
thev 


[10  East,  101);  2  Smith's  Ld.  Cas.  3:50.] 

When  was  William  Fowden  born?  This  Avas  the 
interesting  question  on  which  depended  vast  estates  in 
the  countv  of  Chester.  Elizabeth  Hiii-hain  laid  claim 
to  them  by  virtue  of  a  certain  remainder ;  but  those 
who  contested  her  right  said  that  her  remainder  had 
been  barred  by  a  recov^ery  suffered  on  April  16,  1789, 
by  one  William  Fowden,  since  deceased.  Mrs. 
Higham's  answer  to  this  was  that  on  the  day  named 
William  Fowden  had  not  yet  come  of  age,  and  was 
therefore  iiica[)able  of  sulfcring  recoveries,  and  barring 
the  remainders  of  good  honest  women  like  herself. 
So  it  was  that  it  was  strenuously  disputed  on  which 
side  of  April  It),  17()8,  the  late  Mr.  Fowden  had  been 
boru.  Was  he  or  was  he  not  of  age  on  April  16, 
1789?  It  was,  of  course,  the  object  of  Mrs.  Highara. 
to  make  out  that  ho  was  born  later  than  April  IG  ; 
and  the  most  important  piece  of  evidence  she  adduced 


i 


278 


LEADING    CASES    SIMPLIFIED. 


! 


in  support  of  that  view  was  an  entry  in  tlie  diary  of  a 
man-midwife  who,  like  Fowdon,  liad  loiij^  since  joined 
the  niiijority.  In  that  diary,  under  the  head  of  April 
22,  1768,  there  was  this  important  entry:  — 

*' W.  Fowden,  jun.'s,  wife, 
"Filius  circa  hor.  3  post  nierld.  natus  H. 
"  W.  Fowden,  jnn., 
"April  22,  fllliis  natus 

"  Wife,  £1  iis.  Id. 
*'Paid,  25  Oct.,  17()8." 

This  entry  was  admitted  in  evidence  on  the  ground 
that  it  was  a  declaration  agahut  interest,  the  law 
shrewdly  suspecting  that  no  one  would  be  such  a  fool 
as  to  ])ut  himself  down  as  paid  when  he  h:id  not  been. 

«<  The  entry  made  by  the  party,"  said  Lord  IiIllex- 
BOROUGH,  C.  J.,  "  was  to  his  own  immediate  prejudice 
when  he  had  not  only  no  interest  to  make  it  if  it  was 
not  true,  but  he  had  an  interest  the  other  way  not  to 
discharge  a  claim  which  it  appears  from  other  evidence 
that  he  had.  The  evidence,  therefore,  iu  this  case  was 
properly  received." 


PRESUMPTION  OF  DEATH  FROM  ABSENCE. 


NEPEAX  V.  DOE. 

[2  Mee.  &  W,  KIO;  2  Sinith'.s  Ld.  Cas.  46G.] 

The  effect  of  this  case  is  that  when  a  person  goes 
abroad  and  is  not  heard  of  for  seven  years,  the  law  pre- 


EVIDENCE,  ETCo 


27!) 


sumes  him  to  bo  dead,  unless  the  cu'cinnstances  of  the 
case  arc  such  as  to  account  f(U'  his  not  USimx  licard  of 
without  assuming  his  tloatli,  hut  does  not  presume 
that  lie  died  at  any  particuhir  period  during  those 
seven  j'ears. 


ESTOPPELS. 


I>UCHESS  OF   KINGSTON'S  CASE. 


[I'O  How.  St.  Tr.  ;'.!ll ;   Smith's  Ltl.  Cas.  57;5.] 

One  of  the  most  beautiful  women  of  the  hist  century 
was  Sarah  Chudleii»li,  "Witliout  going  minutely  into 
her  strange  eventful  history,  it  may  be  said  that  in  a 
weak  moment  she  fell  in  love  with  a  Cai)tain  Harvey, 
and  married  him.  Married  in  haste  she  repented  at 
leisure.  Being,  however,  of  an  ingenious  turn  of  mind, 
she  determined  to  destroy  the  evidence  of  the  mar- 
riage, and  with  that  object  Avent  down  to  the  church 
where  the  ceremony  had  been  performed,  and  tore 
the  leaf  out  of  the  register.  She  had  scarcely  accom- 
plished this  feat  when  the  news  reached  her  that  her 
husband  had  succeeded  to  a  peerage,  and  was  dying. 
To  reap  the  benefit  of  such  good  fortune,  she  went 
straight  back  to  the  church,  and  replaced  the  pur- 
loined leaf.  Her  husband,  however,  was  not  obliging 
enough  to  die,  and,  as  the  lady  was  very  anxious  to 
marry  the  Duke  of  Kingston  and  become  a  duchess, 


2^0 


LK.M)l\(^    CASKS    SIMI'I.IKIKI), 


B]',i       f 


she  pi'ocurotl  an  irregular  divorce  from  him  ami  iinir- 
ried  the  duke.  Al'tcr  a  few  yc^ars  tlio  tluk(!  diu(l, 
leaviiii;  liis  widow  a  verv  lariro  fortune.  This  the 
duke's  heirs  were  not  dis[)()sed  to  aHow  her  to  enjoy 
in  ix'ace.  'I'h(^y  prosecuted  lier  for  l)iij:aniy,  that  is,  of 
course,  for  niarrviuijr  tlio  Duk(!  of  Kini^ston  wlien  she 
liad  not  hvcn  U'gally  divorced  from  her  first  Iuisl)and. 
The  defenco  to  tho  ciiari^o  was  that  the  divorce  was  ji 
legal  one,  and  left  her  free  to  marry  the  Duke  of 
Kingston  or  any  other  man  or  duke. 

Tho  iudires  were  renuired  to  answer  the  following 
questions  :  — 

1.  If  a  spiritual  court  decides  that  a  nitvrriagc^  is  null 
and  void,  is  its  decision  so  conclusive  on  the  subject 
that  the  marriage  cannot  ho  proved  against  one  of  the 
parties  in  an  indictment  for  bigamy? 

2.  Supposing  tlio  spiritual  court's  decision  is  final, 
may  counsel  for  tho  prosecution  destroy  its  elfect  by 
showinj;  that  it  was  brought  about  by  fraud  and  collu- 
sion  ? 

The  first  question  was  answered  in  tho  negative,  so 
that  it  did  not  much  matter  to  tho  duch(!ss  what  tho 
answer  to  the  second  was.  That  question,  however, 
tho  judges  answered  in  the  affirmative,  thus  doubly 
settling  her. 

This  is  tho  "  leading  case  "  on  tho  law  of  Esto})pol. 
The  definition  of  estoppel  as  given  by  Lord  Coke  is 
gonerallv  ackno\vled<red  to  l)o  a  little  startlinir,  and  to 
have  an  air  of  immorality  about  it,  which  only  tho 
public  interest  in  putting  an  end  to  litigation,  and  tho 
reastmabloness  of  refusing  to  allow  people  to  contradict 
statements  on  the  truth  of  which  others  have  acted, 
can  justify.     "An  estoppel,"    says  Coke,  "is  where 


I: 


EVIJ>K\t'K,  KTC. 


281 


!i  iiiMii  is  coiicIikUhI  hy  his  own  iict  ov  iicci'[)tiiiu'('  to 
sMV  ilw  tnitli,"  jiD'l  ho  divides  ostoi)pcls  into  tin-eo 
kinds,  viz.:  1.  By  niiittcr  of  record.  2.  liy  deed. 
'A.  B}'  condnc't. 

1.  Wlicn  the  parties  and  the  points  litiuated  are  tlie 
same,  a  tornier  Judunuint  rendered  is  eonehisive.  As 
we  liavo  already  seen  (Man-iott  v.  Ilduipton)  interest 
reipuhUvaa  lit  setjiiiis  lltium. 

2.  To  exeente  a  (h-ed  is  like  cxcenting  a  murderer 
a  very  solemn  tiiini^  and  therefore  whatever  assertion 
a  man  has  made  in  his  deed  he  must  stand  hy.  If  you 
e.xeeute  a  bond  in  the  name  of  Obadiah  you  are  es- 
topped from  i)leading  that  your  name  is  Augustus. 
So,  though  a  person  who  has  given  an  ordinary  receipt 
may  show  that  ho  has  never  really  received  the  money, 
a  person  Avho  has  given  a  receipt  under  seal  cannot. 

Two  qualifications  of  the  doctrine  of  estoppel  by 
deed  nuist  be  remembered:  1.  Althougii  a  person 
acknowledges  in  his  deed  that  he  has  received  the  con- 
sideratioji  money  for  the  service  he  undertakes  to  per- 
form, he  may  nevertheless  show  that  as  a  nuitter  of 
fact  he  has  not  received  it.  2.  A  person  who  is  sued 
on  his  deed  may  show  that  it  is  ibunded  on  fraud  or 
illegality;  and,  if  he  proves  it,  the  document  becomes 
worthless.  The  <»'reat  case  on  this  subiect  is  Collins  v. 
BldiUern,^  which  we  have  already  seen. 

.').  If  a  nuin  so  conducts  himself,  whether  intention- 
ally or  not,  that  a  reasonable  person  would  infer  tliat  a 
certain  state  of  facts  exists,  and  acts  on  that  inference, 
he    will    afterwards   be    estopped    from    denying  it.'^ 


Ante,  p.  8!);  Shirley  Ld.  C;is.  202, 
2  Cornish  v.  Abington,  4  Hurl   &  N.  547. 


Uir^ 


§■ 


282 


LEADING   CASES   SIMPLIFIED. 


¥  'if 


Once  in  England  an  old  gentleman  induced  a  niece 
to  come  and  live  with  him  and  nurse  his  old  age  by 
promising  to  remember  her  in  his  will.  But  the  old 
deceiver  did  not  remember  her.  It  was  held,  how- 
ever, in  an  action  against  the  executors,  that  he  was 
estoi)ped  from  omitting  to  make  some  provision  for 
her,  as  she  had  altered  her  position  in  consequence  of 
his  representations.^  Some  years  later  in  California, 
there  was  a  Good  Templar  who  kept  a  grocery.  After 
a  while  some  one  discovered  that  liquor  was  being  sold 
in  the  store.  The  proi)rietor  protested  that  the  liquor 
did  not  belong  to  him  !)ut  to  his  clerk.  A  creditor  of 
the  clerk  hearing  this,  attached  it  for  a  debt,  as  be- 
longing  to  the  clerk.  Then  the  Good  Templar  finding 
his  property  :iI)out  to  be  taken  from  him,  declared  his 
ownership  and  tried  to  get  the  liquor  back.  But 
it  was  too  late.  "If  parties,"  said  Bennett,  J., 
*' choose  to  make  untrue  statements  by  which  others 
are  injured,  they  should  be  estopped  to  unsay  that 
which  they  have  said.  Estop[)els,  in  general,  are 
odious,  but  in  morchantile  and  ordinary  business 
transactions,  where  men  must  trust  to  the  appear- 
ances and  declarations  of  parties  because  they  have 
no  other  means  of  information  in  such  cases,  the  courts 
have  been  Inclined  to  extend  the  list  of  estoppels."  ^ 


'  Loffus  r.  Maw,  :V2  L.  ,1.  (Cli.)  49. 
2  Mitchell  V.  Reed,  !)  Cal.  204. 


EVIDENCE,  ETC. 


283 


LOCAL  AND  TRANSITORY  ACTIONS. 


MOSTYX  V.  FABRIGAS. 


[Cowp.  101 ;  1  Smith's  Ld.  Cas,  7GG.] 


"  2 


By  the  Peace  of  Piiris,  which  hi  17G3  put  an  end  to 
the  Seven  Years'  War,  the  ishuid  of  Minorca,  in  the 
.Mediterranean,  became  a  British  i)ossession.  In  1770 
the  jrovernor  of  this  ishuid  was  a  gentleman  named 
Mostyn,  who,  apparently,  was  of  opinion  that  he  was 
entitled  to  play  the  part  of  an  absolute  and  irresponsi- 
ble despot  on  his  small  stage.  One  of  his  subjects, 
however,  a  Mr.  Fabrigas,  did  not  coincide  with  him  in 
this  view,  <ind  he  rendered  himself  so  o])noxious  that 
the  irovernor  laid  hands  suddenly  on  him,  and,  after 
keeping  him  imprisoned  for  a  week,  banished  him  to 
Spain.  It  was  for  this  arbinary  treatment  that  Fabri- 
mis  now  brouscht  an  action  at  Westminsler.'iw  England. 
Mostyn  objected  that,  as  the  alleged  trespass  and  false 
imprisonment  had  taken  place  in  Minorca,  the  action 
could  not  be  br'Miirht  in  England.  But  it  was  held 
that,  as  the  cause  of  action  was  of  a  transitory  and 
not  a  local  nature,  it  could.  And  a  British  jury  gave 
Fabrigas  £3,000  damages. 

This  is  the  leading  case  on  "local"  and  "transi- 
tory" actions.  All  actions  ftdl  within  one  or  the 
other  of  these  two  divisions.  Those  which  are  re- 
quired to  be  tried  in  a  particular  county  because  the 
subject-matter  is  connected  with  the  particular  locality 


284 


LEADING    CASES    SIMPLIFIED. 


i]  V 


.'.:i 


i;i. 


must  be  tried  there.     Others   are  transitory,  and  may 
he  tried  wherever  the  parties  can  be  found. 


USE  OF  IIIG IIW AYS -~  PLEADING. 


DOVASTON  V.  PAYNE. 

[1'  II.  Black.  r>-i7;  2  Smith's  Lil.  t7:is.  200.] 

Dovaston's  ooninlaint  aj^ainst  Payne  was  that  he  had 
taken  and  impounded  his  cattle  without  rhyme  or 
reason  :  — 

"  Mj'  kiiie  ai"e  gone,  and  I  have  no  more, 

Which  Payuo  liatli  caught  and  doth  keep  away," 

was  his  mehmcholy  refVaiu. 

CalhKl  on  for  an  ex[)hination,  Pa^'ue  said  he  had 
cauirht  the  l)easts  breakiuij;  down  his  fences  and  ruinini; 
his  crops  ;  he  had  taken  them  dnmarfe  feasant ^  in  fact. 
Such  were  the  replevin  and  the  avowry.  It  was  now 
Dovaston's  turn  to{)lead,  which  he(iid  to  this  effect :  — 

"  Well  but,  my  friend,  if  they  were,  as  you  say,  in 
your  field  damajiiuir  your  crops,  and  all  the  rest  of  it, 
it  was  entirely  your  fault  for  not  keeping  yoin'  f(Mices 
in  proper  condition.  There  they  were, — the  sweet 
innocents,  —  'in  the  hij^hway,'  and  how  could  they 
know  where  they  had  a  right  to  go  and  where  they 
had  not?" 


KVIDENCE,  ETC. 


2.sr) 


The  weak  point  of  this  pleading,  —  pi*obal)ly  drawn 
by  some  youthful  lawyer  called  the  day  before,  —  was 
that,  by  alleging  that  his  cattle  Avero  "  in  "  the  high- 
way instead  of  "passing  along,"  Dovaston  had  not 
exchidcd  the  chance  of  their  being  trespassers.  They 
might  very  well  be  "  in  "  the  hiiihwav  without  beins: 
quietly  and  peaceably  "  passing  along"  it,  like  solder, 
well-conducted  cattle  ;  and  so  the  defendant  had  judg- 
ment. 

On  the  subject  of  certainty  in  pleading,  which  was 
so  much  thought  of  in  the  days  of  special  pleading, 
this  case  has  lost  much  of  its  importance,  since  the 
adoption  of  the  Codes.  It  is,  however,  still  a  leading 
case  ou  the  rights  of  the  public  over  a  hignway. 


1  . 


1] 


^'f 


4* 

r 


The  Principal  M^vxims  of  the  Law/ 


i 


Acta  exteriora  indicant  interiora  secreta. 

Overt  acts  declare  a  man's  intentions  and  motives. 
Actio  )jersonaliB  inoritur  cum  pci&ona. 

A  personal  right  of  action  ceases  at  death. 
Actus  Dei  ncmini  facit  injuriam. 

The  act  of  God  does  injury  to  no  man. 

Benigne  facienda)  sunt  intcrpretationes  propter  simplicitatem 

laicorum,  ut  res  niagis  valeat  quam  pereat. 

Instrum-nts  ought  to  he  construed,  leniently,  tvith  alloioances 
made  for  the  ignorance  of  people  who  are  not  laivyers,  so 
that  the  transaction  may  be  supported,  and  not  rendered 
nugatory. 

Caveat  emptor. 

The  buyer  must  look  after  himself. 
Cessante  ratioiie,  cessat  lex. 

When  the  reason  for  a  laio  ceases  to  exist,  so  also  does  the 
law  itself. 
Contemporanea  expositio  est  optima  et  fortissima  in  lege. 
The  best  way  of  getting  at  the  meaning  of  an  instrument  is 
to  ascertain  lohen  and  under  what  circumstances  it  was 
made. 
Cuilibet  in  sua  arte  perito  credendum  est. 

Every  man  is  an  expert  in  the  particular  branch  of  business 
he  is  familiar  with. 


'  With  some  alterations  and  additions  from  Shirley's  Ld.  Cas., 

291-294.  ,  ^      „^ 

(287) 


I 


Ri,jj, 


^ 


I. 
5'i 


3^   ' 


ilili 


J       SI 
K     '" 


288 


THE    PlJIXCIl'AL    MAXIMS    OF    Till]    LAW. 


Dc'lej>;atns  iion  potest  delegiirc. 

A  person  Jiniini'j  mere  delegated  authority  cannot  himself 
deler/ate  that  anthoritj/  to  another. 
Do  miniinis  noii  curat  lex 

The  Ik  1(1  iloe'i  not  tronhle  it>ielf  aboiit  Irijfefi. 
Doinus  suiv  est  ciiiqiK'  tiitissiimini  relugiiiiu. 

A  ni'in'.'i  JioHse  is  hin  safest  retreat. 

Ex  (lolo  mnlo  non  oritur  actio. 

Xo  ca  use  of  action  can  grow  out  of  a  questionable  transaction. 
Ex  uudo  pMcto  iiou  oritur  actio. 

In  order  to  ground  an  action,  an  agreement  must  have    a 
coiisid<'r(dion. 
Expedit  i'(Mpul>licii.'  ue  (piis  sua  re  male  utatur. 

The  good  of  the  State  requires  a  man  not  to  injure  his  own 
property. 
Exi)ressuui  facit  cessare  tacituiu. 

When  all  (he  terms  are  cvpressed,  nothiiaj  can  he  implied. 

Iguorantia  facti  excusat,  iguorautia  juris  uoii  excusat. 

A  man  may  be  pardoned  for  mistaking  facts,  but  not  for 
mistaking  the  laio. 
Ill  contraetis  tacite  iusunt  quie  sunt  nioris  et  cousuetudiuis. 
Persons  are  presumed  to  contract  with  reference  to  habits 
and  customs. 
Injure  non  remota  si'd  proxiuia  causa  spectatur. 

It  is  not  the  remote,  but  the  immediate  cause  that  the  law 
looks  at. 
Interest  reipublicse  ut  sit  finis  litiuni. 

It  /s  the  interest  of  the  State  that  litigation  should  end. 

>  jx  non  dogit  atl  iini)()ssil)ilia. 

The  law  does  not  compel  a  man  to  perform  imjiossibilities. 
Lex  semper  intendit  quod  convenit  ratioiii. 

The  law  must  he  taken  to  intend  what  is  reasonable. 
Lex  spectat  natura*  ordinem. 

The  law  takes  into  account  the  natural  succession  of  things. 


THE   PllIXCIPAL   MAXIMS   OF   TIIK    LAW.  2fi'.f 


•>t  himself 


iiisaction. 
st  have    a 

•e  hi.s  own 

3  implied. 

i!lt. 

'it  not  for 

m 

letiulinis. 
to  habits 

t  the  law 

end. 
sibilities. 


>f  things. 


Modus  et  convcntio  vincunt  leo-em 

Perso7is  may  contract  themselves  out  of  their  legal  liabilities. 
Non  dat  qui  nou  habet. 

A  man  cannot  give  what  he  has  not  got. 
Non  omnium  qinxi  a  majoribus  constituta  sunt  ratio  reddi 

l)otost. 

A  reason   cannot  be  given  for  everything  that  has  been  %■- 
tablished  by  our  ancestors. 

Omnia  piwsumuntur  contra  spoliatorem. 
Every  presumiMon    is  made   to    tlie   disadvantage   of  the 
vjroiig  doer. 

Omnia  pni'sumnntur  rite  et  sollennitcr  esse  acta. 

It  is  presumed  that  all  the  usual  formal  it  ies  have  been  com- 
plied ivith. 

Omnis    ratihibitio    rotrotraliitur    et   mandato   priori    jequi- 
paratur. 

^1  rafijicatlon  is  taken  bark  and  made  equivalent  to  a  pre- 
vious command 

Optima  est  lex  qua>  minimum  relinquit  arl)itrio  judicis,  opti- 
mus  judex  qui  minimum  sibi. 

The  b'st  system  of  law  is  that  which  leaves  the  least  to  the 
discretion  of  the  Judge;  the  best  Judge  is  he  who  leaves 
the  least  to  his  own,  discretion. 

Potior  est  conditio  possidentis. 

The  one  in  possession  has  the  "  imlde  track." 

Quifacit  \)ev  alium,  facit  i)er  se. 

He  who  does  a  thing  by  another  does  it  himself. 
Qui  hieret  in  litera  lueret  in  cortice. 

He  ioho  harps  on  a  mere  written  Instrument  does  not  get  at 
the  pith  of  tit e  matter. 
<iui  prior  est  tempore,  potior  est  jure. 

The  law  favors  the  earlier  in  point  of  time. 
Qui  sentit  commodum,  sentire  debet  et  onus. 

Benefit  and  burden  ought  to  go  hand  in  hand. 


r 


•1} 


:.. 


ilfj 


I-'    i 


I 


290 


THE    PRINCIPAL    MAXIMS    OF   THE    LAW. 


Quiequid  i)l!intatiir  solo,  solo  ccdit. 

Whtdenr  is  j^lcinted  in  the  (jround  becomes  part  of  the  ground. 
Quilibet  potest  rciiiinciarc  jiiri  pro  so  introducto. 

A  man  may  ivaiie  a  r if/hi  established  for  his  own  benefit. 
Quod  fieri  nou  debet  fnctuin  valet. 

What  ought  never  to  have  been  done  at  all.,  if  it  has  been 
done,  may  be  valid. 
Quod  suhintelligitur,  iion  doest. 

^\ltnt  is  to  be  under.'itood,  is  a.s  good  as  if  it  were  there. 
Quoties  in  verbis  nulla  est  ambiguitas,  ibi  nulla  expositio 
contra  verba  fienda  est. 

When  the  language  of  a  written  instrument  is  perfccibi 
plain,  no  construction  tvill  be  made  to  contradict  the  lan- 
guage. 

Res  inter  alios  acta  alteri  noeere  non  debet. 

^1  vian  ought  not  to  be  prejudiced  by  xchat  has  talien  j)Iace 
betiveen  others. 
Res  ipsie  loquitur. 

The  thing  itself  speaks. 
Res  judicata  pro  A'eritate  accipitur. 

The  decimon  of  a  court  of  Justice  is  assumed  to  be  correct. 
Respondeat  superior. 

A  man  must  nnsioer  for  his  dependents. 

Salus  populi  suprema  lex. 

The  icelftre  of  the  State  t','?  the  highest  law. 
Sic  iitci'e  luo  ut  alienum  non  licdas. 

Make  such  a  use  of  your  oiim  property  <is  not  to  injure  your 
neighbor'-s. 
Solvitur  secundum  modum  solvontis. 

Payment  is  to  be  made  as  the  payer  pleases. 
Spondes  peritiani  artis. 

If  your  position  implies  skill,  you  must  use  it. 

Ubi  jus,  ibi  remedium. 

Where  there  is  a  right,  there  is  a  remedy. 


THE    I'KIXCIPAL    :MAXI.M.S    OF    THK    LAW. 


291 


Vcrha  chartanim  fortius  accipiuntur  contra  profcM'entom. 
Tlie  haiguaye   of  an  inslrument   /.s   to  be  taken   stronr/bj 
against  the  j)e.rso)i  n-Jiose  languarje  it  is. 
Verba  gencralia  restringuuntur  ad  habilitatem  rei  vcl  per- 
sonam. 

General  words  are  to  be  tied  doion  and  interpreted  accord- 
ing to  their  context. 
Vngilantibus  uon  donnicntibut  jura  subveniunt. 

To  get  the  laio's  help  a   man  7nust  not  go  to  sleep  over  hi.i 
o>i-n  interests. 
Volenti  non  fit  injuria. 

The  man  who  is  the  author  of  his  otcn  hurt  has  no  right  to 
complain. 


,''        I 


\% 


I  !'■ 


't 


l( 


11 


Table  of   Abbueviatioxs  ix  this  Volume. 


Ad.  &  K.   .     , 

Ala. 

Allen     .     . 
Am.  Dec.  . 
Am.  Ld.  Cas. 
App.  ('as. 


7\.doli)hus  and  Ellis's  Qnecn's  Bench  Re- 
ports, 18;U-1.S10.  • 
Alabama  Snpreme  C'onrt  Reports,  IHJO. 
Allen's  Massachusetts  Reimrts,  1801-1 867. 
American  Decisions,  1878-^ 
American  Leadiuf?  Cases. 
English  Appeal  Cases, ^  1876. 


Barb.    .     .     . 
Barn.  &  Adol. 
Barn.  &  Aid. 
Barn.  &  Cress. 


Barbour's  New  York  Supreme  Court  Re- 
ports, 1847-187"). 

Barnwell  and  Adolphus's  King's  Bench 
Reports,  1830-1 8;54. 

Barnwell  and  Alderson's  King's  Bench 
Reports,  1817-1822. 

Barnwell  and  CrcssweU's  English  King's 
Bench  Reports,  1822-1830. 


'  The  second  scries  of  these  reports,  extending  from  1841  to  1852, 
is  sometimes  cited  Ad.  &  E.  (x.  s.),  but  the  correct  citation  is  Q.  B. 

•^  Tliis  is  a  worlc  published  ])y  A.  L.  Bancroft  &  Co.,  San  Fran- 
cisco, and  containing  iUl  the  cases  of  general  value  and  authority 
decided  in  tlie  courts  of  tlie  several  States  from  the  earliest  issue 
of  the  State  Reports  to  the  year  18()!).  About  thirty-three  volumes 
are  now  out,  reacliing  to  1838.  It  is  edited  by  A.  C.  Freeman,  Esq., 
the  author  of  Treatises  on  Executions  and  Judgments,  and  is  of 
great  value  to  the  profession,  as  the  number  of  State  Reports  run 
now  into  tlie  thousands,  and  a  complete  collection  of  them  is  some- 
thing quite  beyond  the  means  of  the  majority  of  lawyers. 

■''  In  this  series  are  reported  the  judgments  on  appeal  of  the  Eng- 
lish House  of  Lords  and  Privy  Council. 

(293) 


m 


li  " 


»*  .,' 


<! 


'J!)4  TAHLK    OF    AUnUKVIATIONS. 

Best  &  S.       .     .  Best  and  Sinilli's  (^tioen's  Beiu-li  Kt-ports, 

lS(;i-187(). 
Bi<r.  Ld.  Cas.       .   Biirelow's  Loadinir  Cases  on  Bills,  Notes. 

Bills  &  Notes  .       and  Cheeks  (2(1  ed.).     Bust    i,  IHSO. 
BijT.  J^d.  Ciis.      .  Bijii'low's  Leading;  Cases  on  Torts   Boston, 


Torts 


IS 


ii>. 


\V- 


Binj; Biny;hani*s    KnoHsli    Common    Tleas    1 

l)()rts,  1Hl>2-1s;5|, 
Bing.  (n.  c).      .   Binuham's     Knglisli    Common    IMeas    lie- 
ports  (new  cases).  iw.'JI-jSK). 
Black    ....  Black's  United  States  Supreme  Court  Be- 

ports,  isr,  1-1802. 
Black.,  II.       .     .   See  II.  Black. 
^y.      .      .   Sec.  W.  Black. 

.     .   Blackford's  Indiana  Heports,  1817-1H17. 


icK. 


Bl; 


Blaekf. 


•  • 


Bosw Bosworth's    New     York    Superior    Conit 

Reimrts,  ISfiT-lSC,;}. 
Brockenhrougirs  Uepoi'ts  of  Chief  Jnstict' 

Marshall's  Decisions,  1802-18;!:;. 
Burrow's  Englisli  King's  Bench  Beporls, 
<  o  <  - 1  /  / 1 . 


Br(jck 


Burr. 


Cal California  Su[)remo  Coi'it  Reports,  ]H')0- 

Camp Cami)l)eirs   English   Xi:;l    Prius  Reports, 

1808~181(;. 
.   Carrington     and     Payne's     English     Nisi 
I'rius  Reports,  182;5-18n. 
English  Conunon    Bench   (or   Pleas)   Re- 
poi'ts,  old  and    new  series,   1845-1800; 

I8r)(;-i8(ir). 

Central  Lav  Journal.  1874- 
Coke's    English    King's    Bench    Re})orts, 
1072-1610. 

Conn Connecticut      Supreme     Court     Repoits, 

1814- 
Cow Cowen's   New  York  Reports,  182;?- 1820. 


Car    <fc  P. 

C.  B.     .     . 
C.  B.  (n.  s.) 

Cent.  L.  J. 
Coke     .     . 


TAlil.E    OF   ABIJUKVIATIUNS. 


295 


I      IH'- 

KV- 


Cowp Cowper's  En<j>iisli  Iviii«r's  Uciicli  IJcports. 

1774-177H. 
Cnuu'li      .     .     .  Crjinch'.s   I'liitcd    Statun   Supivmo    Coui't 

Keports,  IsOO-lKl,'). 
Croke   ....  rroki-'s    English    King's   lU'iicli   Hoports, 

l."»H2-l(ill. 
Ci'oinp.  &  J.    .     .  Civunptou  jukI  Jorvis's  Kiiglisli  Kxc'lio(|iU'i- 

Reports,  1.s;;()-1H;}2. 
Cromi).  M.  &  U.  .  Cr  )ni[)t;)n,  ^Ii'csou  and  Hoscoe's  Kiiglisli 

KxclRMpuM-  Hi'ports,  1h;}4-1.s;1(;. 
Ciisli Ciishiiig's   Massai'liusetts   Ivopoits,    1818- 

IS.V}. 

Dt'  (r.  M.  &  G.  .   Di'Gi'x,  Macnaghteii  and  Oonldu's  Knglish 

Clianct'iy  Ri'ports,  18')1-18.J7. 

Bcnio    ....   Dciiio's  Now  York  Hoports,  18ir)-18|8. 

Dill Dillon's  rnitcd  Slati'S  Circuit  Court  Re- 
ports, 1870-1878. 

Dougl.        .      .     .   Douglass's  English  King's  IJcneli  Reports, 

1778-1781. 

Dow.  &  Ivy.    .     .  Dowling    and    Kvland's    Englisli    King's 

Bench  Reports,  182 1-18-27. 


East      .     . 

El.  &  Bl.  .     . 

Kwell  on  Dis. 
of  Inf.   .      . 

Ex. 

Ex.  Div.    .     . 

Grant's  Cas.  . 
Gratt.   . 
Gray     .     . 


East's    English    King's    Bench   Reports, 

1801-1812. 
Ellis   and    Blackburn's   English   Queen's 

Bench  Reports,  I8r)2-18.")8. 
EwcU's  Leading  Cases  on  the  Disabilities 

of    Infancy  and   Coverture.     Chicago, 

187(5. 
English   Exchequer   Reports,    1847-18,^)0. 
English  High  Court,  Exchequer  Division, 

Reports,  187r)- 

Grant's    Pennsylvania  Cases,  1852-1803. 
Grattan's  Virginia  Reports,  1844-1881. 
Gray's  Massachusetts  Reports,  1854-1800. 


296 


TABLE    OF    ABIiREVIATIONS. 


8 


) 


\m    i 


31?  ■ 


Ilalst.   .     .  . 

II.  Black. 

Hill       .     .  . 

II.  L.  C'iis.  . 

Hob.    . 

I  low.     .     . 

How.  St.  Tr.  . 

Hurl.  &  C.  . 

Ilml.  &  N.  . 


.  Ilalstend's  New  Jerse}'  Reports  (Law), 
1821-1831.  «» 

.  Henry  Blackstone's  Knglish  Common  Pleas 
Reports,  1 788-1 TDC. 

.  Hill's  New  York  Reports,  1841-1844. 

.  English  House  of  Lords  Cases,  1847-18(1."). 

.  Hobart's  English  King's  Bench  Reports, 

.  Howard's  United  States  Supreme  Court 
Rfp)rts,  184;5-18(;(). 

.  IIowi-lI's  Englisli  State  Trials,  ll(;,'J-l.S20, 

.  Ilurlstune  and  Coltmau's  English  Ex- 
chequer Reports,  1862-180'). 

.  Ilurlstone  and  Xorman's  English  Ex- 
chequer Reports,  18r)fi-18Gl. 


Ill 

Ind.      .     .     . 

Johns.  .     . 

Kas.      .     . 
Langd.  Cas.  on 

Con.       .     . 
LaAuson  Cont. 

Carr.      .      . 
Law>!       Us.    . 

»&  (  .      .     . 
Ld.  Raym. 

I^.  J.  (Exch   or 

Ch.)       .     . 
L.  R.  C.  P.     . 

L.  R.  Ex.  .     . 


Illinois    Supreme    Court   Reports,    1-S ID- 
Indiana   Supreme    Court   Reports,    1848- 

Johnson's  New  York  Reports,  1800-182;'). 

Kansas    Supreme    Court    Reports,    1802- 
I  nngdell's    Select  Cases   on    the   Law  of 

Contracts  (2nded.).     Boston,  1871). 
Lawson  on  Contracts  of  Common  Carriers. 

St.  Louis,  1880. 
Lawson   on    Usages    pnd    Customs,   with 

Illustrative  Cases.     St.  Louis.  1H81. 
Raymond's  (Lord)  English  King's  Bench 

Re,)orts,  1(;!)4-17.'U. 

The  English  Law  Journal,  1800- 

English  Law  Reports,  Court  of  Common 

Pleas,  1S(;(;-187."). 
English  Law  Reports,  Court  of  Exchequer, 

18GG-1875. 


r  ' 


TABLE    OF    ABBREVIATIONS. 


2\)1 


L.  R.  11.  L.    .     .  English  Law   Reports,  House   of  Lords, 

18r)()-1875. 
L.  R.  Q.  B.    .     .  English  Law  Reports,  Court  of  Queen's 

Bench,  1866-1875. 

Mac  lit  G.  .  .  Macnaghtcn  and  Gordon's  English  Chan- 
cery Reports,   184'.)-18r)l. 

Mason  ....  3Iason's  United  States  Circuit  Court  Re- 
port:., 1816-18:50. 

Mass Massachusetts   Sui)reme    Judicial    Court 

Reports,  1804-1822;   1867- 

Me Elaine  Supreme  Court  Reports,  1820- 

Mee.  &  AV.     .     .  Meesou   &  Wclsb^'s    English  Exchequer 

Rei)orts,  1836-1847. 

Mete Metcalf's   Massachusetts  Reports,   1840- 

1847. 

Mich jMiciiigan   Supreme  Court  Reports,  1847- 

Mo JMissouri   Supreme;  Court  Reports,  1821- 


N.  J.  (L.) 
N.  Y.    .     . 


New     Jersey   Supreme     Court     Reports, 

171)0- 
New   York   Court   of    Appeals    Reports, 

1847- 


Paige    . 
Reak.  Ad.  Cas. 
Pet.       .     .     . 
Pick.     .     . 
P.  Wms.    .     . 


.  I'aige's  New  York  Chancery  Reports. 
1828-184;"). 

.  Peake's  English  Nisi  Prius  Cases  (addi- 
tional), 1790-1812. 

.  I'eters'  I'nited  States  Suprenn;  Court  Re- 
ports, 1827-1842. 

.  Pickering's  Massachusetts  Reports,  1822- 
^42. 

.  Peere  Williams's  English  Chancery  Re- 
ports, 16i)5-17;36. 


'^Lh  i'**''  '• 


Mi 


*'%!'*  H 


lifl 


21)8 

Q.  B.    .     . 

Q.  B.  Div. 


TABLE    OF    AIJDUKVIATIOXS. 

.  Kn<rlish  Queen's  Bench  Reports.  1841- 
1852.1 

.  Knglish  IlijTli  Court,  Queen's  Bench  Divi- 
sion, llei)orts,  187")- 


Salk Salkeld's  EngUsli  Kinj^'s  Bench  Reports, 

ir)8<»-1712. 

Sera'.  &  R.  .  .  Sergeant  nnd  Rawle's  Pennsylvania  Re- 
ports, 1S14-1S2S. 

vShirley  L(l.  Cas.  .  Shirk'y's  Leading  Cases  Made  Easy.  Lon- 
don,  1880. 

Sid Siderfin's  English  King's  Bencli  Reports, 

ICoT-UlTO. 

Skin Skinner's  EiigUsh  King's  Bench  Rci)()rts, 

lG,Sl-ir.98. 

Smith'sLd.  Cas.  .   Smith's  Leading  Cases. - 

Stra Strange's  English  King's  Bench  Reports, 

171(;-174!). 


Taun Taunton's   English    Common   Pleas    Re- 
ports, 1S()8-181<). 
Taylor's  Treatise  on  Landlord  and  Tenant. 

(7th  ed.)  Boston,  187!l. 
Term     Reports,    English     King's    Bencii, 
178r)-18()0.'' 
Thomp.  Ld.  Cas. .  Tlionipson's  Leading  Cases  on  Carriers  of 

Carr.  Pass.       .       Passengers.     St.  Louis,  1880. 
Thomi).  Ld.  Cas. .  Thompson's  I^eading  Cases  on  Negligence. 
Neg.       ...       St.  Louis,  1880. 


Taylor's  L.    . 
&  T.      .     . 

Tcr:n  Rep.     . 


'  This  series  is  sometimes,  though  improperly,  cited,  Ad.  &  !•>. 
(N.  s.)  after  the  reportt-rs,  Adolphus  and  Ellis. 

-  The  seventh  Ainoricau  edition  of  this  great  work  was  publislicd 
in  Philadelphia  in  1S72. 

■'  This  series  is  sometimes  cited  Durn.  &  E.,  after  tlie  names  of 
the  reporters,  Durnford  anil  East. 


TAIU.K    OF    AUHREVIATIOXS. 


299 


,0:1- 


Yes.      ,     . 

Vt.  .     .     . 

Willi.    .     . 

Wall.  jr.    . 

Wash.   C.   Ct 

^V.  Black. 

Week.  Rep. 

Weiul. 

Wheat. 

AVils.     .      . 

Willes  .     . 


Tnited    States    Supreme    Court    Reports, 
]S75- 

Vesey's  English  Chancery  Reports,  17H9- 

1810. 
Vermont  Supreme  Court  Reports,  1820- 

AVallace's  United   States   Supreme  Court 

Reports,  180;5-1875. 
AVtiUace's    United    States    Circuit   Court 

Reports,  1812-1862. 
Washington  United  States  Circuit  Court 

Reports,  180;]-1827. 
Blackstone's  Enghsh  King's   Bench  Re- 
ports, 1746-1780. 
English  Weekly  Reportei-,  1853- 
Wendell's  New  York  Reports,  1828-1841. 
Wheaton's  United  States  Supreme  Court 

Reports,  181»)-1827. 
Wilson's  English  King's  Bench  Reports, 

1742-1774. 
Willes' s  English  Common  Pleas  Reports, 

1737-1760. 


II 


1 

fi' 

'1    ' 

i    \ 

i 

^ 

fii 

'! 


i:ndex. 


ABSENCE. 
Party  absent  seven  years  without  being  licard  from,  presumed  to 
be  dead,  278,  "7'J. 

ACCEPTANCE.     (See  also  Sales.) 
Offer  does  not  make  a  contract  till  accepted,  1,  2. 
Offer  cannot  be  retracted  after  acceptance,  ?>,  4. 
Proposer  may  prescribe  time,  place  and  form  of  acceptance,  G,  7. 

But  not  of  refusal,  8. 
Offer  must  be  accepted  within  reasonable  time,  9,  10. 
Acceptance  must  be  identical  with  terms  of  offtu',  10,  20 
Acceptance  of  altered  proposal,  20,  21. 
Of  goods  under  Statute  of  Frauds,  08,  09,  70. 

ACCIDENT. 

Will  excuse  party  from  performing  contract  when,  113,  114. 
Party  not  liable  for  injury  resulting  from  unintentional  accident, 

215, 
Presumption  of  negligence  from  happening  of,  224,  225. 

ACT  OF  GOD. 
Contract  made  impossible  by,  promisor  is  discharged,  114,  115. 
But  not  where  performance  is  only  "  dangerous,"  110,  117. 

ACTION. 

Forbearing  to  bring  suit  sulTicient  consideration  for  contract,  32. 

But  not  if  there  be  no  legal  cause  of  action,  32,  33. 
Local  and  transitory  actions  distinguished,  283,  284. 

ACTORS  .VND  ACTRESSES.     (See  Tiieatuk.) 

ADMINISTRATION  OF  JUSTICE. 
Contracts  to  impede  the,  illegal,  89,  90. 

*"•    ementsto  refer  dispiue  to  arbitration,  when  legal,  91,  92 
tVager  as  to  whetiier  prisoner  will  be  convicted,  illegal,  97. 

ADMISSIONS,     (Sje  Eviokxck.) 

AGENCY.     (See  Pkincii-ai,  axu  Agkxt,) 

(301 ) 


w 


Wit  ;•■ 


■1 1 


302 


INDEX. 


ALTERATION. 

Acceptance  of  altered  proposal,  20,  I'l. 

Unauthorized  alteration  of  bill  of  exchange  vitiates  it,  loS,  loO. 

AMBASSADORS. 
Goods  in  houses  of,  privileged  from  distress,  184. 

AMBIGUITIKS.     (See  Oual  Evidknck.) 

ANIMALS. 

Wild  animals  ci         -  I      listrained  for  rent,  184. 
Liability  of  owucrior  injuries  by,  218. 

"ANOTHER." 
Promise  to  answor  frw    'c^bt,  .  ^..  of,  03,  04. 

APPORTIONMENT. 

An  entire  contract  cannot  be  apportioned,  \2^^,  124. 
Relaxation  of  this  rule,  124,  note. 

ARBITRATION. 

Agreements  to  refer  disputes  to,  when  legal,  91,  92. 

ASSENT.     (See  Acceptance.) 

AUCTIONS. 
Bidding  at,  5,  G. 

BAGGAGE. 

What  is  "baggage  "  for  which  carrier  is  responsible,  212,  213. 

BAILMENTS.     (See  also  Cakriers:  Innkeepers.) 
The  different  kinds  of,  194,  19.j,  190,  197,  198. 

BANK  BILLS.     (See  Neuotiable  Paper.) 

BANKER. 

Not  liable  for  paying  altered  chock  negligently  drawn,  100,  101. 
Liable  to  action  for  dislionoring  customer's  check,  255. 

BETTING.     (See  Wacjers.) 

BILLS  OF  EXCHANGE.     (See  NEiioriAUi.i:  Paper.) 

BILLS  OF  LADING.     (See  Ne(;(<tiahi.e  Paper.) 

BOOKS. 
Entries  made  by  deceased  party  in  course  of  business  admissible 
in  evidence,  270. 

Or  if  against  his  interest,  277,  278. 


INDEX. 


303 


BORROWER. 
Liability  of  borrower  of  chattel,  19(>. 

BREACH  OF  PROMISE  OF  MARRFAGE. 

Infant  may  sue,  but  cannot  be  sued  for,  43,  4-1. 

Promise  to  marry  not  within  Statute  of  Frauds,  59. 

Ou  promise  to  marry  at  a  particular  time,  action  may  be  brought 

before  that  time  has  arrived,  118,  lit). 
Action  will  lie  for,  120. 

Express  promise  need  not  be  shown,  120,  121. 
What  are  good  causes  for  breaking;  off  entrageraent,  121,  122. 
Party  cannot  act  on  rumors  as  to  conduct  of  other,  122. 
But  may  plead  his  or  her  conduct  after  engagement  was  broken 

off,  122,  123. 

BRIEF. 

A  model  brief,  8'J. 

BUGS.     (See  Fcunisiied  Hou3K.) 

CARRIERS. 

Carrier  of  goods  is  an  insurer,  108. 

Responsibility  of   carrier  of   passengers  for    defective  vehicle, 

202,  203. 

The  responsibility  of  carriers  of  goods  and  passengers  compared, 

203,  7iote. 

Duty  of,  to  follow  time  tables,  204. 

Power  of  carriers  to  lim't  their  liability  by  notice,  205. 

Liability  for  injury  to  free  passenger,  207,  208. 

Travelling  on  "free  pass"  with  condition,  209,  210. 

Who  carrier  may  refuse  to  carry,  210,  211. 

What  is  "  baiigage  "  for  which  carrier  is  responsible,  212,  213,  214. 

CHECKS.     (See  Necotiabi-K  Papeh.) 

CHILDREN.     (See  Infancy.) 

CHRISTIANITY. 

Contract  in  furtherance  of  attacks  on,  illegal,  92,  93. 

COHABITATION. 

ast  cohabitation  no  consideration  for  promise,  37,  38. 
i^romise  to  pay  money  for  future  cohabitation,  illegal,  37,  38. 

COMMODATUM. 

Detined  and  explained,  196. 


V  rrmi0i->vr^h'  nam 


304 


INDEX. 


mi 


COMPETITION. 

Contracts  to  restrain,  illegal,  87,  88. 

COMPOSITION. 
No  consideration  for  agreement  to  accept  part  of  debt  in  payment 
of  whole,  i}5,  3G. 

CONSIDERATION. 

Always  necessary  to  support  a  contract,  28,  20. 
Its  adequacy  is  immaterial,  29,  30. 
Consideration  must  be  real,  30,  31. 
Forbearance  to  sue  sullicient,  32. 

But  not  if  there  is  no  legal  cause  of  action,  32,  33. 
Promise  to  do  what  party  is  bound  to  do  iusullicient,  34,  35,  3(i. 
Moral  obligation  not  sullicient,  3(5,  37,  3S,  (15. 
Past  consideration  will  not  support  a  promise,  38,  3'.). 

Unless  there  was  a  previous  reipiest,  39,  40. 
Labor,  though  unsuccessful,  a  sullicient,  40. 

Must  be  expressed  in  memorandum  reciuired  by  Statute  of  Frauds, 
(i2,  03. 

CONSTRUCTION. 

Contracts  are  construed  liberally,  119. 

CONTRACTS.     (See    Acceptanci;  ;     Considkuation  ;  Pkoposal; 
Statutk  of  Frauds,  and  the  various  special  titles.) 

CONTRIBUTION. 
A  defendant  in  tort  cannot  recover  contribution  from  co-aefend- 
ant,  209,  270. 

CONTRIBUTORY  NEGLIGENCE.     (See  Nkui.I(;i:xck.) 

COVENANTS. 

Wliat  covenants  in  deed  "  run  with  the  land,"  178,  J79,  180. 
Condition  in  lease  if  once  waived  is  \\'iiive(l  altogether,  180,  181. 

CORPORATIONS. 

Liable  on  contracts  not  under  seal,  53,  r>i,  .55. 

COURTS.     (See  Administhatiox  ok  JtsTici:.) 

CREDIT.     (See  also  Statutk  ok  Fkauds.) 
Liability   for  falsely  eulogizing  another's  credit,  245,  240,   247, 

248. 

CUSTOM.     (See  Usages  and  Custom-s.) 


INDEX. 


305 


DAMAGE. 

"  Injury"  without  damage  is  actionable,  252,  253. 

But  not  damage  whentliere  is  no  "  injury,"  253,  254,  255. 

DA^^AG^:s. 

Measure  of  damages  on  breach  of  contract,  125,  12(1. 

Exorl)ltant  agreements  as  to  damages  will  not  be  enforced  12G, 

127. 
Dajnages  iu  actions  of  tort,  2(30,  207,  208,  209. 

DANGKU. 

That  performancf!  of  contract  is  made  dangerous  by   "act  of 
God"  does  not  excuse,  110,  117. 

DAY. 

Several  offences  committed  on  same  day ;  one  penalty  only  recov- 
erable, 201. 

DEATH. 

Of  principal  revokes  agent's  authority,  140. 

Parly  absent  seven  years  without  being  heard  from  presumed  to 
be  dead,  278,  27!). 

«'  DEBT,  DEFAULT,  Oil  MISCARRIAGE  OF  ANOTHER." 
Promise  to  answer  for,  under  Statute  of  Frauds,  57,  58,  03,  04. 

DEPOSITUM. 

Dellned  and  explained,  105. 

DISCHARGE.     CSee  Pekkuumaxck.) 

DISTRESS. 
What  goods  on  premises  are  privileged  from  distress  for  rent, 

182,  183,  184,  185, 

DIVORCE. 
Does  not  affect  life  insurance  previously  effected,  189,  190,  191, 

192,  193. 
DRAINS.     (See  FruNisiiKi)  House.) 
DYING  DECLARATIONS.     (See  Evidence.) 


ELECTIONS. 

Wagers  on  result  of,  void,  97. 

Action  against  election  officers  for  refusing  vote,  252,  253. 


20 


^ 


i!  't 


306 


INDEX. 


ESTOPPEL. 

Forinur  judfjment  recoverod  subse(|uently  binding  when,  280. 
Party  estopped  from  denying  wliat  lie  lias  said  nnder  hand  and 

seal,  2«1. 
And  also  from  denying   statements  on  wliich  others  have  acted, 

281,  282. 

EVIDENCE.     (See  Okal  Evidence.) 
Presumption  of  negligence  from  happening  of  accident,  224,  226. 
Presumption  of  value  against  spoliator,  2o2. 
Hearsay  evidence  generally  inadmissible,  271,  et  aeq. 

Except  as  to  matters  of  public  interest,  274. 

Or  on  matters  of  pedigree,  274,  275. 

Or  adini.Hsion  by  party  or  agent,  275. 

Or  confession  of  person  charged  with  crime,  275. 

Or  dying  declarations,  275. 

Or  if  part  of  tlie  transaction,  i.e.  res  gcKtit,  275. 

Or  declaration  of  deceased  party  in  the  course  of  Ida 
business,  270. 

Or  against  his  interest,  277,  278. 
Presumption  of  absence  from  deatli,  278,  270. 


FALSE  REPI{ESENTATIONS. 
Railroad  guilty  of,  in  publishing  incorrect  time  tables,  205. 
Liability  for  making  false  representations  on  which  another  acts, 

245,  24G,  247,  248,  24!),  250. 
Party  estopped  from  denying  statements  on  which  another  has 

acted,  281,  282. 

FINDER. 
Of  property  has  title  against  every  one  but  real  owner,  251,  252. 

FIRE.     (See  also  Insurance.) 
Destruction  of  hall  by  fire,  discharges  agreement  to  let  it,  when,. 

113,  114. 
Rent  is  payable  for  full  term,  though  premises  burn  down,  165. 
Liability  of  railroad  for  spread  of,  241,  242. 

FIRE-ARMS.     (See  Wakkanty.) 

FIRE  INSURANCE.     (See  Insurance.) 

FIXTURES. 
Right  to  fixtures  annexed  to  land  by  tenant,  174,  175,  176,  177. 
Cannot  be  dis    ained  for  rent,  183. 


H       '1; 


INDEX. 


307 


I'ORNICATION. 

Clmr^in;?  women  with,  not  actionable  per  sc,  2(i3,  264. 

FR.vrDULENT  CONVKYANCES. 

The  law  as  to,  128,  12!),  l.SO. 

FUKK  PASS.     (Sec  Caruikus.) 

FUHNISIIED  HOUSE. 
That  furnished  house  is  infested  with  hugs  good  ground  for  tenant 

leaving,  1«8,  K.O. 

So  as  to  defective  drainage,  IGO. 


GAMBLKUS. 
M:iy  be  excluded  by  carrier  from  train,  210,  211. 

"GOODS,  WARES  ANO  MERCHANDISE." 

Stocks  are  within  these  words,  G5,  CG. 
Goods  not  in  existence,  (!G,  G7. 
Value  of  goods,  G7,  C8. 

GRATUITOUS  SERVICE. 

Party  undertaking  to  do  thing  without  reward,  is  responsible  for 

negligence,  194. 
GUARANTY.     (See  Cukdit;    Stathtk  of  FimiDSj    Waukanty.) 

PT^FST 

Traveller  boarding  at  hotel  by  the  week  is  a,  201. 

HEARSAY.     (See  Evidenck.) 

HIGHWAYS. 

Rights  of  public  over,  284,  285. 

HIRER. 

Of  chattels  liable  only  for  negligence,  198. 

HOUSE.     (See  also  FrKNisiiKi.  Hoi;sK ;  Landlord  and  Tenant.) 
A  man's  house  is  his  castle,  258,  259,  2G0. 

HUSBAND  AND  WIFE. 
When  husband  liable  for  debts  of  wife,  45,  46,  47,  48,  49,  50. 

ILLEGAL  CONTRACTS.     (See  also  Immoral  Contracts.) 
To  pay  woman  for  future  cohabitation,  .S7,  ;?s. 
To  prevent  competition  for  public  service,  87,  88 
To  Influence  legislative  bodies  or  public  officers,  88,  89. 
To  impede  administration  of  justice,  89,  90. 


308 


INDEX. 


ILLEGAL  CONTRACTS  —  Continued. 

To  submit  disputes  to  arbitration,  91,  02. 

To  rent  rooms  for  Iccturo  attackin<j  Christianity,  92,  98. 

Kxccutinji  bond  on  Sunday,  i>3,  94. 

Wafers  wlien  Icjjal  and  wlicn  illc'sal,  Ofi,  97,  98. 

In  restraint  of  trade,  98,  W,  ino,  lOl,  102. 

In  restraint  of  marrin'je,  102,  1015. 

To  \mn<i  abont  marriai;o,  10;5,  104,  105. 

Court  will  aid  neitlicr  party  to  illegal  contract,  lOfi,  107. 
Except  where  illegal  purpose  is  not  complete,  108,  lOO. 
IMMORAL  CONTRACTS. 

Sui>plying  ;joods  to  prostitute  for  purpose  of  her  trade,  95,  96. 
IMMORALITY. 

Charge  of,  not  actionable  prr  se,  2(14,  2G5,  2(;)i,  note. 
IMPLEMENTS  OK  TRADE. 

Are  i)rivilei;ed  from  distress,  1H4. 

IMPOSSIBILITY  OF  PERFORMANCE.     (See  Pkhkoumance.; 

"IMPUTED  NEGLIGENCE."     (See  Neglioknce.) 

INDECENCY. 
Wagers  on  indecent  subjects  void,  97. 

INFANCY. 

Contracts  of  iafants  void,  valid  and  voidable,  41,  42. 

Except  for  necessaries:  what  are  "necessaries,"  42,  43. 

Infant  may  sue,  but  cannot  be  sued  for  breach  of  promise  to 
marry,  43,  44. 

Child  of  tender  years  not   legally  guilty  of  contributory  negli- 
gence, 237,  238. 

But  negligence  of  parent  may  be  "  imputed"  to  child,  239. 

IN.JUNCTION.     (Sec  Theatre.) 

INN-KEEPERS. 

Liability  of  inn-keepers  for  goods  of  guest,  199. 

Traveller  boarding  at  liotel  by  the  week  is  a  "  guest,"  200,  201. 

INSANITY. 

Lunatics  not  liable  on  their  contracts,  when,  50,  51,  52. 
But  liable  for  torts,  52,  53. 

INSURANCE. 

Concealment  of  material  facts  by  insurer,  18(1,  187. 

Fire  insurance  —  customary  use  of  i)rohibited  article,  187,  188. 

Who  may  insure  life  of  another,  189,  190,  191,  192,  193. 


INDKX. 


30f> 


JOINT  AND  SKVKHAL  MABILITIKS. 

ArUiiowlediiiiu'iit  by  om-  of  two  joint  milkers  of  note  binds  the 

other,  \^>'^,  IC.-t. 
One  joint  wron<i-(loer  can  not  recover  from  oth  r,  !.'<'.!>,  \>'0. 

LAUOK. 

Thou^li  unsuccessful  Is  a  sufficient  consideration  for  a  contract,  40. 

LANDLORD  AND  TKNANT. 

Rentini;  rooms  for  lecture  uttacliinii  Christiauity,  illcjial,  O'J,  m. 
Destruction  of  hall  by  tiro  discharges  agreement  to  rent  it,  when, 

U.S,  111. 
Payin::;  rent  for  premises  destroyed  by  (ire,  IGo. 
No  warranty  on  l)art  of  landlord  as  to  condition  of  house  rented, 

KK!,  lf)7. 

Except  the  house  is  a  furnished  one,  HiS,  lOi). 
Effect  on  tenant  of  landlord  mortgagiu";  the  premises,  u;'.»,  170, 

171. 
Tenant  entitled  to  way  going  crop  by  custom,  171,  172. 
Leases  for  more  than  three  years  uuist  l)e  in  writing,  172,  173,  174. 
But  parol  agreement  may  regulate  terms  in  other  respects, 
172,17:5,174. 
The  law  as  to  fixtures  placed  on  land  by  tenant,  174, 175, 17(1,  177. 
What  covenants  in  lease  "run  with  the  land,"  178,  170,  1«0. 
Condition  in  lease  if  once  waived  is  waived  altogether,  ISO,  181. 
What  goods  on  premises  are  privileged  from  distress  for  rent, 

182,  183,  184,  185. 
Injury  to  one  coming  on  another's  premises,  221,  222. 
Tenant  generally  liable  for  injuries  caused  byuon-repair  of  build- 
ing, 2'_'3. 

Exceptions  to  this  rule,  223,  224,  note. 

LANDS. 

What  is  an  "  interest  in  or  concerning  lands  "  withm  Statute  of 

Frauds,  5'.),  GO. 
Liability  for  injury  caused  by  removing  support  of  land,  220,  221. 

LAW. 

Where  law  renders  performance  of  contract  Impossible,  promisor 

is  excused.  111, 112. 
LEASE.     (See  Landlord  and  Tenant.) 

LEGISLATURE. 

Agreement  to  influenceiegislatlve  bodies,  illegal,  88,  89. 


3ii 


^ 


i  f 


i 


I 


810 


INDEX. 


LIBEL. 

Distinction  between  libel  and  slander,  266,  note. 

LIMITATION. 

Acknowledgment  by  one  joint  maker  of  note  binds  other,  16?,  164. 

LOCAL  ACTION.     (Sec  Action.) 

LOC.VTIO  liEI. 

Delined  and  explained,  198. 

LOCATIO  OPERIS  FACIENDI. 
Defined  and  explained,  198. 

LUNATIC.     (See  Insanity.) 

MAGISTRATE. 
Action  ajj;ainst,  for  assessing?  wrong  penalty,  261. 

MALICIOUS  PROSECUTION. 
Action  for,  when  sustainable,  262,  263. 

MANDATUM. 

Defined  and  explained,  195. 

MARRIAGE.     (Sec  also  Bkkach  ok  Pkomise  ok  Mahkiagk;  Hus- 

HAXI)    AM)    WU'E. 

Wager  that  a  i)arty  will  not  marry,  void,  97. 
Contracts  in  restraint  of,  illega],  102,  103, 
Contracts  to  bring  about,  void,  10.'?,  104,  105. 

MASTER  AND  SERVANT.     (See  also  Pkixcipal  and  Agent.) 

On  contract  of  hiring  to  begin  at  a  particular  time,  if  nmster  re- 
fuses to  perform,  servant  may  bring  action  before  that  time 
arrives,  117,  118. 

Inn-keeper  liable  for  goods  of  master  in  possession  of  servant, 
201. 

Responsibility  of  master  for  acts  of  servant,  225,  226. 

Person  not  liable  for  negligence  of  independent  contractor,  227, 
22!S. 

Exceptions  to  this  rule,  228,  229,  notr. 

Lial)ility  of  master  for  injury  to  fellow  servant,  229,  230,  231,  232. 

Driver  of  horse-car  not  servant  of  passengers,  23.j,  236. 

Action  for  inducing  servant  to  break  contract  26;j,  260. 

MEASURE   Ol'   DAMAGES.     (See  Damages.) 

MISTAKE.  . 

As  to  person  contracting,  23,  21. 


it 


INDEX. 


311 


i3, 1G4. 


MISTAKE  —  Continued. 
As  to  thing  contracted  for,  25. 

Money  paid  under  mistake  of  law  cannot  bo  recovered,  lao,  131. 
Different  if  tlic  mistalce  is  one  of  fact,  131,  132,  note. 

"MONTE-MAN."     (See  Gamulkks.; 

MORAL   OBLKxATION.     (See  Coxsidkkatiox.) 

MORTGAGE. 

Mortgage  of  property,  mortgagor  remaining  in  i)ossession,  128, 

121),  130. 
Effjct  on  tenant  of  mortgage  of  premises  by  landlord,  100,  170, 

171. 

MUTUUM. 

Deflned  and  explained,  V.)i\. 


i\ 


NECESSARIES.     (See  Infancy;   IIis»anm>  and  Wife.) 

NEGLIGENCE.     (See  also  Cauuikks.) 
Banker  not  liable  for  paying  altered  check  negligently  drawn,  IGO, 

U'A. 
Person  undertaking  gratuitous  service  is  Table  for  negligence, 

194,  11)5. 
Carrier  c  innot  exempt  himself  from  liability  for  negligence,  210. 
Party  not  liable  for  injury  caused  t)y  uniutenlioual  accident,  215. 
One  accumulating  dangerous  things  on  land  liable  if  they  escape 

and  do  injury,  21(!,  217. 

Unless  escape  was  caused  by  act  of  God,  217. 
Or  of  third  party,  217. 
Liabilities  for  injuries  by  animals,  218. 
Selling  p'.)lsi)n  with  harmless  label,  210. 
Renioviug  support  of  land,  2i;t,  220. 
Injury  to  person  coming  on  another's  premises,  221,  222. 
Injury  caused  by  non-repair  of  l)uilding,  223. 
Presumption  of  njgligeuco  from  happening  of  accident,  224. 
Liability  of  master  for  wilful  acts  of  servant,  225,  22(1. 
Employer  not  lial)le  for^negligence  of  independent  contractor,  227. 
Liability  of  master  for  injury  to  fellow-servant,  22!>,  230,  231,  232. 
Contril)Utory  negligence  bars  party's  action  for  injury,  233,  23-t. 

Exception  to  tins  rule,  234,  235. 
Imputed  negligence,  235,  23(1. 
Contributory  negligence  of  children,  237,  238 
Contributory  negligence  of  parent,  231>. 
Proximate  and  remote  cause,  210,  241,  242. 


:  ' 


I    I! 


312 


INDKX. 


NEGOTIABLE  PAPER. 

A  i)r()inissory  noto  imist  be  payablu  at  a  time  crrt'iiu,  l'>:\,  I'A. 

IBank  notes  pass  a  fi;oo(l  title  l)y  delivery,  154,  155. 

Who  is  a  "  holdex'  for  value  ;"  antecedent  debt  a  good  eonsidera- 

tion,  155,  15G. 
Notice  of  dishonor,  when  necessary,  157,  158. 
Unauthorized  alteration  of  bill  of  exchange  vitiates  it,  15S,  \:>'.). 
Negligence  in  drawing  clu.'cl<,  HiO,  101. 
Stoppage  in  transitn  defeated  by  bonafldc,  indorsement  of  bill  of 

lading,  ICl,  1(12,  ICS,  note. 

NOTICES.     (See  Carkikus.) 

NUISANCE. 
Distinction  between  injury  to  property  and  personal  discomfort, 

243,  241. 
Liability  for  injury  to  property  by  smoke  from  factory,  243,  244, 

245. 


i 


OFFER.     (See  Pkoi-osal.) 

OFFICERS.     (See  Priu.u;  Okfickus.)  ' 

ORAL  EVIDENCE. 

Contracts  contained  in  several  documents  cannot  be  explained 

by,  71,  72,  73. 
Not  admissible  to  vary  written  contract,  74,  75. 

But  adinissit)le  to  sliow  tliat  tliere  is  no  agreement  at  all,  7<5. 
Latent  ambiguity  may  be  explained,  77,  78. 

But  not  patent  ambiguity,  78,  7D. 
S  ipplemeutary  contract  may  be  sliown  by,  71),  80. 
Usages  of  trade  may  be  shown,  80,  81,  82,  83,  84,  85. 

But  not  if  they  contradict  contract,  85,  86. 

PARENT  AND  CHILI).     (See  also  Inkaxcy.) 

Son  not  bound  to  pay  pa-^t  expenditures  of  parent,  3(!,  37. 

Moral  obligation  not  sulflt^ieut  consideration  for  contract,  3(1,  37. 

PARTNERSHIP. 

Wlien  persons  liableas  partners,  150,  151,  152. 

PASSENGERS.     (See  Cakkikus.) 

PAST  CONSIDERATION.     (See  Consideration.) 

PAWNS. 

The  law  as  to,  197. 


INDEX. 


313 


I'AYMENT.  uavraeut  of  whole,  nudum 

Agreement  to  receive  part  of  aeot  m  paymcu 

pactum,  35,  3(). 
rEDIGREE.     (See  Evidence.) 
PENALTIES.       •  '         ^ 

same  day,  2G1. 
^"■iS'";Iofsupre,nc  court  C,  oo  rauroa.  <,ues.,o„s  v,ewe.  wit. 
suspicion,  230,  7»o(e. 

''™,v,fon„*mcf  ••  .nulcr  Statute  o,  Frau,ls,  meaus  .ou>pi.tlo„,  12. 
Act  otoue  Pa"y  u,aWius  pertormauc.  i.upossibl.  by  other  cUs- 

J,;S  luX'ib.0  by  act  of  law  .-.charges  P-ty,  ul,  m. 
S:.,uR.rc'l  n»po»»iblo  l,y  accldout,  wl.eu  party  d,,charge<,,  113, 

J,;;;;,iJL„  C  cou.ract  byoue  party  before  tl.eoi  per.oru>. 

nnro  ffives  otlicf  rii,'lit  to  sue  inslanWr,  U-,  U»,  ^i-'- 
CoX S  mu^t  be  entirely  performed  or  party  can  recover  noth- 
ing, 123,  124. 
Relaxation  of  this  rule,  124,  7iote. 

PIGNORI  ACCEPTUM. 

Detined  and  explained,  197. 

""  Ceml'fty  lu  Pleadlug  not  ,o  lu.portaut  a»  formerly,  284,  285. 

'''iSty  for  »elll,  g  pol«.u  wltU  h.rmlcs  label,  2.»,  220. 

POST.  .    ,  . 

Contracts  by,  7,  11,  l-Nl^^l^'^"'  ^''• 

PHESUMl»TION.     (See  Evii.enck.) 

PUIXCIPAL  AND  AGENT. 

V  special  agent  must  strictly  pursue  his  authority,  139 
i)eath  of  principal  revokes  authority  of  agent,  140. 


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if; 


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lit 
Iff 


I 

1! 


314. 


INDEX. 


PRINCIPAL  AND  AGEiJiT— Continued. 
Contracts  with  agents  of  undisclosed  principals,  141,  142,  143, 

144,  145. 
Party  described  in  contract  "as  agent"  may  still  be  liable  as  a 

principal,  145,  14G. 
Set-off  of  debt  of  agent  against  claim  of  principal,  14(1,  147. 
Agent  exceeding  authority  liable  in  contract,  148,  14!). 
Admissions  of  agent  bind  principal,  275. 

PRIVITY. 
Not  necessary  to  support  action,  wlien,  219,  220,  248,  249,  250. 

PROMISSORY  NOTES.     (See  Negotiablk  Paper.) 

PROPOSAL. 
Does  not  make  a  contract  till  accepted,  1,2. 
Cannot  be  retracted  after  acceptance,  3,  4. 
Proposer  may  prescribe  time,  place,  and  form  of  acceptance,  6,  7. 

But  not  of  refusal,  8. 
Must  be  accepted  within  reasonable  time,  1),  10. 
Acceptance  nmst  be  identical  witli  terms  of  offer,  19,  20. 
Acceptance  of  altered  proposal,  20,  21. 
Proposal  to  unascertained  person,  22. 

PROSTITUTE. 
Price  of  goods  supplied  to,  cannot  be  recovered  when,  95,  96. 

PROXIMATE   AND   REMOTE    CAUSE. 
The  "Squib''  Case,  240,  241. 
Liability  of  railroad  for  spread  of  Are,  241,  242. 
In  action  for  slander,  260,  20". 

PUBLIC   OFFICERS. 

Agreement  to  influence,  illegal,  88,  89. 

PUBLIC  POLICY.     (See  Illegal  Contuacts;  Waqbbs.) 

RAILROADS.     (See  Cauiuehs.) 

RECEIPTS. 
Tiie  policy  of  preserving  receipted  bills,  130,  131. 

REFUSAL. 
Proposer  cannot  prescribe  terms  of,  8. 

RELIGION.     (See  Chuistianity.) 

REPRESENTATIONS. 
Representations  and  warranties,  26,  27. 


INDEX.  315 

RES   GEST.T5.     (See  Evidence.) 

RESTRAINT   OF  TRADE. 
Contracts  in,  void,  '.18,  <.)'.»,  100,  101. 

Unless  restraint  is  partial  and  reasonable,  101,  102. 

RETRACTION. 
Offer  cannot  be  retracted  after  it  is  accepted,  3,  4. 

REWARD. 

Offers  of,  0,  '-'2. 

RUMORS. 

Cannot  affect  rights  of  party,  when,  122. 

SALES.     (See  also  Statute  or  Frauds.) 
When  sale  is  complete,  property  passes  at  once,  132,  133. 

Unless  something  remains  to  be  done,  133,  134. 
When  party  selling  goods  is  presumed  to  warrant  them,  134,  i35, 

13(;,  137. 
Warranty  made  after  sale,  void,  138. 

SATISFACTION.  ^      .        ,^    ,,, 

Agreement  to  make  a  thing  to  one's  satisfaction,  18,  IJ. 

^''ciollngl'chool  on  account  of  small-pox  does  not  discharge  direc- 
tors from  paying  teacher's  salary,  UC,  117. 
SEAL.     (See  Coui'OKATIONS.) 

^'promi^fto'pay  woman  a  sum  of  money  for  past  cohabitation, 
nudum  pactum,  37,  3S.  _ 

If  for  future  cohabitation  contract  is  illegal,  3*,  3H. 

^  m' d^!^'  of  agent  against  claim  of  principal,  when  allowed,  14G, 

147,  148. 

SIIKLP. 

Privileged  from  distress  for  rent,  l»o. 

^'l^uln'^igainut,  for  breaking  into  house,  when  maintainable,  238, 
251),  2(i0. 

^'E^d^nLhich  causes  closing  of  school,  does  not  relieve  direc- 
tors from  payment  of  teacher's  salary,  11  »>,  11-  • 
Contract  of  pianist  to  perform  excused  by,  114,  116. 


'  r 


■■■■■Hi 


!  W 


316 


INDEX. 


SLANDER. 

Defamatory  words,  when  actionable  and  when  not,  2(13,  204,  2r.,''>. 
Distinction  between  slander  and  libel,  2(j(>,  note. 

SMALL-POX. 
Breaking  out  of,  rendering  it  necessary  to  close  school,  does  not 
discharge  directors  from  paying  teacher's  salary,  110,  117. 

SMOKE.     rSce  NfisANCT,.) 

STATUTE  OF  FRAUDS. 
The  provisions  of  the,  explained,  50,  57. 
Promise  to  answer  for  "  debt,  default,  or  miscarriage  of  another," 

57,  58,  03,  04. 
Promise  "  in  consideration  of  marriage,"  5i). 
What  is  an  "  interest  in  or  concerning  lands,"  59,  60, 
Contracts  "not  to  be  performed  within  a  year,"  GO,  61,  62. 

"Performance"  means  completion,  72. 
Consideration  must  be  expressed  in  memorandum,  02,  03, 
StocliS  are  "  goods,  wares  and  mercliaudise  "  within,  05,  66. 
Goods  not  in  existence,  60,  67. 
Value  of  goods,  07,  68. 

Acceptance  and  receipt  of  goods  under,  68,  0!»,  70. 
Oral  evidence  not  admissible  to  vary  contract,  74,  75. 
Leases  for  more  than  three  years  required  t(j  be  in  writing  by, 
172,173,  174. 
But  parol  agreement  may  regulate  terms  in  other  respects, 
172,  173,174. 

STATUTES. 
Contracts  violating  statutes  are  void,  '.)3,  !)4. 
Wagers  when  prohil)ited  by,  are  void,  98. 

STOPPAGE  IN  TRANSITU. 
Right  to,  defeated  by  bona  fide  indorsement  of  bill  of  lading,  161, 
162,  163,  note. 

SUNDAY. 

Executing  bond  on  Sunday  illegal,  93,  94. 

SUPPORT  OF  LAND.     (See  Lands.) 


THEATRE. 
Contract  of  pianist  to  perform  excused  by  sickness,  114,  116. 
Penalty  in  contract  of  actor  for  failure  to  act,  120,  127. 
Rival  manager  liable  for  inducing  actress  to  break  her  contract, 
268,  269. 


INDEX. 


317 


THE  ATRK  —  Continued. 
Actress  may  be  prevented  by  injunction  from  performing  at  rival 
tlieatre,  2(J8,  note. 

THIEF. 

May  give  good  title  to  stolen  banli-note  by  delivery,  154,  155. 

TIME-TABLES.     (See  Cauuikus.) 

TRADE.     (See  Ukstr.vint  of  Tkade.) 

TRANSITORY  ACTION.     (See  A('TI()n\) 

TRESPASS. 

Wlio  are  trespassers  ah  initio,  25(1,  257,  258. 

TROV^ER. 

One  witii  riglit  to  possession  of  cliattel  may  maintain,  251,  252. 

TRUST. 

Is  the  cover  of  fraud,  130. 

UNCERTAINTY. 

Terms  of  a;;roement  must  be  certain,  It!,  17,  18. 
Agreement  to  mal<e  a  tiling  to  one's  "satisfaction,"  18,  11). 

USAGES  AND   CUSTOMS. 

Oral  cvidcjice  of,  admissible  to  explain  written  contracts,  80,  81; 
82,  815    81,  85. 

But  not  to  contradict  them,  85,  Si;. 
Custom  giving  tenant  way-going  crop  valid,  171,  172. 

VADIUM. 

Dellned  and  explained,  197. 

VALUE. 

Of  goods  under  Statute  of  Frauds,  07,  ()8. 

Presumption  of  value  of  thing  as  against  wrong-doer,  252 

VENUE.     (See  Action.) 


\va(;ers. 

Legal  at  commou  law,  OU,  07. 

Unless  against  public  policy,  indecent,  etc.,  07. 
But  generally  prohii)ited  by  statute,  '.t8. 

WAIVER. 
Condition  in  lease  if  waived  once  is  waived  altogether,  180,  181. 


318 


INDKX. 


WARRANTIES     (See  also  Insurance;  Salks.) 
Effect  of  "breach  of  warranty,  20,  27. 

No  warranty  by  landlord  as  to  condition  of  promises  leased,  liUT, 
.  1G7. 
1  Except  in  the  case  of  a  furnished  house,  108,  10!). 

Warrant  of  safeness  of  gun  which  afterwards  bursts,  248,  24'.), 
250. 

WATER-COURSES. 

Injury  to,  not  actionable  when,  253,  ?54.     * 

WITNESS. 

f 

Promise  to  pay  witness  more  than  his  lefial  fees,  void,  34. 
WRITINGS    (See  Statutk  ok  Frauds  ;  Okai.  Evidbnck.) 

YEAR.  ' 

Contracts  not  to  be  performed  within  a,  GO,  01,  62. 
"  Performance  "  means  '*  completion,"  7?. 


%■-, 


<e(l,  1  ('.(?, 
i48,  24!), 


